This study first undertakes to present the 2012 turning point affecting the powers of the Constitutional Court, followed by an introduction to the institution of the genuine constitutional complaint. It then examines - by drawing on comparative legal perspectives - the admissibility of EU fundamental rights standards in the context of genuine constitutional complaint procedures.
Keywords: caesura, constitutional complaint, admissibility, EU law, EU fundamental rights standards, right guaranteed by the Fundamental Law
The Fundamental Law entering into force on 1 January 2012, as well as Act CLI of 2011 on the Constitutional Court (hereinafter: CCA) resulted in a caesura in the history of the Hungarian Constitutional Court and in the system of separation of powers established since the transition. While between 1990 and 2011 the primary function of the Constitutional Court was essentially to be grasped in the counterbalancing of the National Assembly - thus the legislative power - through abstract norm control, since 2012 the body's characteristic competence, also numerically outstanding, has become the constitutional complaint.[2] Within the latter competence, constitutional complaints against court decisions (Section 27 of the CCA) questioning the Fundamental Law-conformity of ordinary court decisions have become predominant.
Prior to this paradigm shift, Hungary joined the European Union in 2004, which also presented challenges for the body. The combined effect of the two changes is also noticeable: under the previous Constitution, EU legal issues were brought before the Constitutional Court within the framework of abstract norm control,[3] but since then, EU legal issues have typically arisen in the course of complaint proceedings. In this study, we examine how the Constitutional Court's previous practice has changed and how it currently approaches the infiltration of issues related to EU fundamental rights standards into complaint proceedings.
The aim of this study is to present the paradigm shift affecting the powers of the Constitutional Court and, in this context, the institution of constitutional complaints against court decisions. Subsequently, section 3 of the study formulates further proposals for the purpose of broadening control over the courts with regard to the Constitutional Court's admissibility practice and interpretation of its powers in the context of dialogue between European courts. For an actual paradigm shift to happen, it is essential that the body considers constitutional complaints challenging court decisions as broadly and thoroughly as possible.
In Europe, until the 20th century, democracy meant the fullest possible exercise of legislative power - rather than its restriction - which fundamentally hindered the earlier spread of constitutional adjudication. In Hungary, following the transition, a Kelsenian model of constitutional review became dominant - one that protects minorities against the prevailing parliamentary majority[4] and provides for extensive abstract norm control. The actio popularis - the possibility for anyone to initiate abstract ex post facto norm control without having to demonstrate a legal interest - was in fact one of the demands of the Round Table negotiations during the regime change. This proved to be the most effective way to "weed out" the laws created under the socialist system that were incompatible with the new constitutional order.[5]
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Under the previous Constitution, alongside the general rule of ex post norm control, there was an exceptional possibility for concrete norm control. Concrete norm control took two forms: judicial initiative and constitutional complaint. In the former case, if a court hearing an individual case concluded that the applicable law was unconstitutional, it could suspend the proceedings and request a review of the allegedly unconstitutional law by the Constitutional Court. A constitutional complaint, on the other hand, could be filed by a person whose fundamental rights had been violated through the application of an unconstitutional law, provided that they had already exhausted other legal remedies or that no other remedy was available to them.[6] With the entry into force of the Fundamental Law, the relationship between the general rule and the exception was reversed: constitutional adjudication shifted toward concrete norm control. The defining competence of the Constitutional Court became the constitutional complaint, and the possibilities for submitting such complaints were significantly broadened.
At the same time, abstract norm control was curtailed. The possibility for anyone to submit a petition was eliminated. According to Article 24 (2) subsection e) of the Fundamental Law, the Constitutional Court may review the conformity of laws with the Fundamental Law only at the initiative of the Government, one quarter of the Members of Parliament, the President of the Curia, the Chief Public Prosecutor, or the Commissioner for Fundamental Rights.
The primary function of concrete norm control is the protection of individual fundamental rights. Abstract norm control, on the other hand - according to the original Kelsenian conception - focuses, from a positivist perspective, on safeguarding the integrity of the constitution. This is also related to another distinction: concrete norm control serves the enforcement of individual interests, whereas abstract norm control serves the enforcement of the public interest.[7] In the case of abstract norm control, the petitioner does not (or at least not directly) turn to the Constitutional Court to assert their own rights, since the defining feature of abstract norm control is the absence of an individual case. Formally, therefore, the petition serves the abstract public interest of maintaining the coherence of the legal order and ensuring that its elements conform to the constitution.[8] The petitioner initiating abstract norm control thus acts in the interest of preserving constitutional democracy.[9]
According to Fruzsina Gárdos-Orosz, there is no theoretical obstacle to the parallel application of abstract norm control and fundamental rights adjudication. She also points out, however, that in practice, no state operates both institutions simultaneously. She attributes this partly to the fact that a broad system of individual complaints combined with actio popularis would impose an excessive workload, necessitate significant structural and operational reforms, and hinder the resolution of cases within a reasonable time frame.[10]
However, the parallel application of the two forms of constitutional adjudication faces not only technical obstacles. The purpose, approach, and set of instruments of the two institutions differ - and, most importantly, they require the exercise of functions that belong to different branches of power. In light of this, we believe that abstract and concrete norm control conducted by the same body cannot be equally strong in any state; in practice, one inevitably becomes dominant while the other remains exceptional.
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