The institution of a constitutional dialogue between national (including the constitutional courts) and international courts (including the Court of Justice of the European Union) is becoming increasingly important. A brand new legal provision of the Hungarian Act on the Constitutional Court, in force since 2023, creates the possibility for the CJEU to request the legal opinion of the Hungarian Constitutional Court in a case pending before the CJEU. This legal provision (or rather its previous lack) almost caused a major conflict between the two judicial fora in 2019, when the CJEU had to rule on the question of whether the European Commission's interpretation of a provision of the Hungarian Fundamental Law was in line with EU law. The paper presents and analyses Decision 2/2019. (III. 5.) AB of the Constitutional Court as the decision of the Hungarian Constitutional Court to avoid this 'near-conflict'. Based on the adopted text of Section 38/A of the Act on the Constitutional Court, the paper examines the practical significance of this new legal institution of the constitutional dialogue, with particular reference to certain issues relating to the question of "inevitable right to dispose over the population", as a possible subject for constitutional dialogue.
Keywords: population, sovereignty, quota decision, migration, constitutional dialogue, CJEU, Constitutional Court of Hungary, Act on the Constitutional Court of Hungary
The literature discussing the 'constitutional dialogue' between national (constitutional) courts and certain 'international courts' [using the term in a broad sense, and including the Court of Justice of the European Union (hereinafter: CJEU)] is considerable.[2] This constitutional dialogue [partly in relation to the European Court of Human Rights (hereinafter: ECtHR) and partly in relation to the CJEU] has been referred to on several occasions by the Hungarian Constitutional Court.[3] For a long time, the constitutional dialogue between the CJEU and the constitutional courts of the Member States could be understood as a 'constitutional monologue': while the constitutional courts of the Member States initiated preliminary rulings in cases pending before them with varying regularity, the CJEU never formally consulted the constitutional courts of the Member States in the course of its proceedings in a case pending before it. However, Section 38/A of Act CLI of 2011 on the Constitutional Court (hereinafter: CC Act), in force since 14 December 2023, now allows the CJEU to initiate proceedings before the Hungarian Constitutional Court on a specific issue. In the context of this study, I will examine in more detail one particular aspect of this new Section 38/A of the CC Act, the category of "the inalienable right to dispose over its population", in the specific context of the migration and asylum crisis that has been affecting Europe for at least a decade now and the legal responses to it.
By 2014-2015, the Mediterranean region was facing a very serious migratory crisis: the number of migrants entering (or at least intending to enter) the
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European Union radically increased, and the EU Member States concerned (especially Greece and Italy) were increasingly unable to provide for them and process their asylum applications.[4] The European Council summit of 25-26 June 2015 decided to intervene in three areas: relocation and resettlement of migrants; return, readmission and reintegration of migrants; and cooperation with countries of origin and transit.[5] As stated in the European Council Conclusions, relevant to the focus of this study, Member States agreed to provide for the temporary and emergency resettlement of 40,000 persons in clear need of international protection from Greece and Italy to the other Member States of the EU over a period of two years, with the participation of all Member States.[6] Council Decision 2015/1523, adopted following the conclusions of the European Council, has now been translated into a legal act foreseeing the transfer of 24,000 applicants from Italy and 16,000 applicants from Greece to the other Member States.[7] Council Decision 2015/1601, adopted subsequently, set out the exact number of asylum seekers that each Member State is obliged to take in, respectively.[8] Under the Decision, Hungary was obliged to receive a total of 1,294 asylum seekers (306 from Italy and 988 from Greece). The Decision defined the transfer of an asylum seeker as "the transfer of an applicant from the territory of the Member State [...] responsible for examining his or her application for international protection to the territory of the Member State of relocation".[9] According to the Decision, the transfer did not require the consent of the asylum seeker: after the identification of the applicants who meet the conditions for transfer and the approval of the Member State of destination, Italy and Greece shall decide as soon as possible on the transfer of each applicant to the Member State of destination, which shall only be notified to the applicants, who are then to be transferred to the Member State of destination as soon as possible following the notification. The Decision entered into force on 25 September 2015 and was applicable until 26 September 2017.[10]
Both Slovakia and Hungary brought actions for the annulment of the EU quota decision, which were joined by the CJEU.[11] In the proceedings, Hungary raised a total of ten pleas in law,[12] of which I will examine only one in more detail, the violation of international law governing the status of refugees.[13] Hungary argued before the CJEU that, under the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Additional Protocol, applicants must be guaranteed the right to remain in the territory of the Member State in which they have made their application until the authorities of that country have decided on their application.[14] Interestingly, Slovakia did not raise this argument in the CJEU proceedings, while Poland supported the Hungarian Government's position on this issue.[15] However, this difference does not necessarily mean that Slovakia did not share Hungary's position on this issue. Rather, it is that Slovakia's claim was based solely on a breach of certain rules of EU law, while Hungary also invoked arguments beyond EU law, namely public international law. Hungary's approach is logical, if only because while the CJEU has a monopoly on the interpretation of EU law, the interpretation of the norms of public international law gives much greater freedom to the Member States. However, it is also true that this greater freedom of argumentation does not necessarily go hand in hand with a higher success rate before the CJEU, since the margin of argumentation on the part of the Member States (in this case Hungary) is also available to the CJEU when it delivers its judgment.
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