Bogdandy, Armin von

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How to Set Aside Hungarian CardinalLawsArmin von Bogdandy 2022-03-18T17:17:25The anti-Fidesz coalition could win the next Hungarian elections. That, however,is only one step on a long path back to a full democracy. Fidesz has skilfullyentrenched its power, personnel, and policies. The so-called cardinal laws are acentral instrument for this entrenchment, as their amendment requires a two-thirdsmajority of members present in parliament (Article T (4) of the Fundamental Law). Animportant example are the rules governing political transition, such as the electorallaws, which are at odds with European standards. Reducing the number of cardinallaws and changing the electoral system is key to the opposition’s programme (see1.2).Why is it key to change the rules governing political transition if the opposition haswon? One reason is that the new majority would be a very heterogeneous coalition.It would unite almost all opposition parties with very different profiles except for theiropposition to Viktor Orbán. Therefore, a new government might find it hard to agreeon many issues and could easily fall apart, leading to Fidesz’ triumphant return.Another reason is that the current system is construed in a way that favours Fidesz.The current electoral system allowed the Fidesz-KDNP alliance to transform a 49 %majority of popular votes into a constitutional supermajority of seats in parliament(see the ODHIR Report, p. 25). For these and other reasons, changing the electoralrules is imperative in a democratic transition.How could a new majority overcome these laws, align the Hungarian legal orderwith European standards, and allow for democratic governability? The way providedby the Fundamental Law (amending these laws with a two-thirds majority), seemsunfeasible given that Fidesz is likely to prevent their adoption. Against this backdrop,we propose to operationalize EU law and, more precisely, the values of Article 2TEU and their primacy. They allow – in fact, even require – the new Hungariangovernment to set aside those cardinal laws that violate these values. A verysimilar idea has been previously suggested by Kim Lane Scheppele. Her proposal,however, concentrates on how the Hungarian Fundamental Law could permitdisregarding those cardinal laws that violate EU law. We focus on EU law.Is this legal science fiction? We are certainly confronted with a historically newsituation. In the past, a country’s transition to democracy occurred in a legal settingthat was almost exclusively domestic. International standards, if any, were vague,embattled, and hardly institutionally embedded. Hungary’s transition, by contrast,will occur in a thick European legal order that is thickening further precisely on theissue of the democratic rule of law. Whatever happens in Hungary will meet the livelyinterest of the rest of Europe, not only for legal reasons, but also because it toucheson the essentials of the entire union.- 1 -We elaborate our proposal in four steps. First, we briefly recall that Article 2 TEUcontains legal obligations for the Member States. Second, we argue that nationalgovernments are under an obligation to set aside national laws that violate EUvalues, even before a court has established such a violation. As such a move mayprovoke fierce criticism, we sketch how a new Hungarian government could requestsupport from European institutions. Finally, we discuss how to avoid the legalvacuum that setting aside a cardinal law might create.I. Article 2 TEU Contains Justiciable ObligationsThe Union’s values in Article 2 TEU serve as a standard for the legality of Hungariancardinal laws. These values constitute legal obligations for the Member States. Thecaptured Polish Constitutional Tribunal, which asserts that these values are merelyof “axiological significance”, stands rather alone in holding this opinion, joined onlyby the Polish and Hungarian governments (Hungary v Parliament and Council,paras. 205, 222, 240). The legal nature of these values is well-established by now.The Court of Justice has reiterated their legal nature in the actions of annulmentbrought by Poland and Hungary against the rule of law conditionality regulation.The Court has confirmed that “Article 2 TEU is not merely a statement of policyguidelines or intentions, but contains values which (…) are an integral part of thevery identity of the European Union as a common legal order, values which aregiven concrete expression in principles containing legally binding obligations for theMember States” (Hungary v Parliament and Council, para. 232).These values are justiciable before the courts. Although these values, as mostconstitutional principles, are vague and open, they have gained contours in theCourt’s jurisprudence. This is especially true for judicial independence and the ruleof law. The Court has operationalised these values by combining them with morespecific Treaty provisions. While such a nexus had been initially established betweenArticle 19 TEU, Article 47 of the Charter, and the value of the rule of law, the Court’sjudgments on the rule of law conditionality regulation indicate further links. TheCourt has noted that Articles 6, 10 to 13, 15, 16, 20, 21, and 23 of the Charter ofFundamental Rights define the scope of the values of human dignity, freedom,equality, and respect for human rights, while Articles 8, 10, 19(1), 153(1), and 157(1)TFEU substantiate the values of equality, non-discrimination, and equality betweenwomen and men (Hungary v Parliament and Council, paras. 157 f.).The obligations contained in Article 2 TEU apply to the entirety of domestic law,including areas that remain within the exclusive competence of the MemberStates. While the Member States are free to exercise these competences, they arerequired to do so in compliance with EU law – including the values in Article 2 TEU(Repubblika, para. 48; Commission v Poland (Disciplinary regime for judges), para.56; Poland v Parliament and Council, para. 269). As such, these obligations applyto the Member States’ constitutional structures as well as cardinal laws. Importantly,these obligations take precedence over the Member States’ national identities(Hungary v Parliament and Council, para. 233).- 2 -The obligations in Article 2 TEU have a substantive as well as a proceduraldimension. As regards the procedural obligations, Article 2 (a) of Regulation2020/2092 provides that the European rule of law under Article 2 TEU requires“a transparent, accountable, democratic and pluralistic law-making process”. Itshould not be difficult to establish that many cardinal laws were adopted in breachof these requirements. One such example is that of Act CLXVII of 2020, whichamended the Hungarian electoral laws in a “fast track process” without any publicconsultation and during a state of emergency. Both the Venice Commission and theOSCE considered this cardinal law to preclude fair elections and an “accountable,democratic and pluralistic law-making process”.II. Why the New Government Can Rely on Article 2TEUA government must disapply national laws that violate EU law. A long line ofjurisprudence establishes that the primacy of EU law requires not only nationalcourts but all Member State bodies to give full effect to EU rules (see e.g. thejudgment in Garda Síochána). Accordingly, all organs of the State must disapplynational legislation that is contrary to EU law. This applies to constitutional provisionsas well (Internationale Handelsgesellschaft, para. 3; Euro Box Promotion andOthers, para. 251; RS (Effet des arrêts d’une cour constitutionnelle), para. 51).Certainly, such an EU obligation sits uneasily with the principles of legality and legalcertainty, both of which are important components of the rule of law as well. Theprinciple of legality requires the supremacy of and compliance with the law. Whilethis is true, it is also the case that conflicts among norms are a regular feature inlegal orders. Maintaining legality and legal certainty then depends on respecting therules governing conflicts of laws. The primacy of EU law constitutes such a rule thatrequires all public authorities to set aside conflicting national law.There are very few exceptions to this rule. The Court of Justice has accepted that“overriding considerations of legal certainty” may, in some cases, allow a temporarysuspension of the ousting effect of a rule of EU law with respect to contrary nationallaw (A and Others (Wind turbines at Aalter and Nevele), para. 84; Winner Wetten,para. 67). If, however, a violation of Article 2 TEU is established, it would be difficultto argue that considerations of legal certainty could prevail. Further, this exceptionrequires the respective Member State to take steps to remedy the illegality. Due tothe required two-thirds majority, the new Hungarian government can do so only withthe help of EU law. It must, therefore, set aside such laws on its own motion.III. How Can European Institutions Support a NewHungarian Government?How could a new Hungarian government proceed? It could start by identifying themost problematic cardinal laws and assessing their compatibility with Article 2 TEU.This assessment should be as transparent as possible and made accessible to the- 3 -public. To that end, it could rely on decisions and reports by numerous European,international, and academic institutions. Following this assessment, the governmentcould issue a reasoned decision declaring its intention to no longer apply theidentified cardinal laws.In parallel, the new Hungarian government could tap into the legitimating potentialof involving European institutions. First, it could request the Venice Commissionto adopt an opinion regarding those cardinal laws that it considers to be violatingEuropean values. Though the Venice Commission cannot establish a violation ofArticle 2 TEU, it is accepted as a constitutional standard setter in Europe. Pursuantto Article 1 of its Statute, its mission is to spread the “fundamental values of the ruleof law, human rights and democracy”. Moreover, its assessments are not only a“useful source of information” in the EU law context. They also have an immediatebearing on the interpretation of Article 2 TEU. The Union’s common values mustbe interpreted on the basis of the Member States’ common constitutional traditions.Opinions of the Venice Commission help identifying these traditions. From a practicalperspective, the Venice Commission has proven to react extremely quickly.Second, the new Hungarian government could ask the European Commission toinitiate infringement proceedings against its own country. In the recent infringementproceedings against the Hungarian LGBTIQ laws, the Commission relies – dueto the “gravity of these violations” – on Article 2 TEU itself. At first sight, such aninvitation might sound rather counter-intuitive. Usually, the infringement procedureunder Article 258 TFEU is an adversarial procedure between the Commission on theone hand and a Member State government on the other. Here, both the Commissionand the Hungarian government would represent the same side.Yet, insights from the Latin American context support such an approach. A fewgovernments have asked the Inter-American Court of Human Rights to issuedecisions to bolster their policies. In May 2016, the government of Costa Ricasubmitted a request for an advisory opinion on the issue of same-sex marriagewith a view to allowing it against a hesitant legislature. The Court issued a ground-breaking opinion in 2017 by holding that same-sex couples should enjoy all rights,including marriage, without discrimination, and establishing standards on the self-determination of gender identity. Another example is the Barrios Altos case, althoughit was not the government that formally initiated the procedure. The decision goesagainst an amnesty law that was enacted on the initiative of President AlbertoFujimori that shielded him and his henchmen after the so-called “auto-coup” of 1992.When the proceedings reached the Inter-American Court, Fujimori’s regime hadfallen, and the new democratic government pleaded before the IACtHR to establishthe illegality of that law in order to support the Peruvian democratic transition. TheCourt did so by declaring that the law lacked legal effects.IV. How to Fill the “Legal Vacuum”What happens when primacy bites? Take again the new Hungarian electoral laws. Ifthese cardinal laws are found to violate Article 2 TEU, a new Hungarian governmentmust set them aside. How then can a government organise an election without a- 4 -proper election legislation in place? A legal vacuum is to be avoided (identifying thisproblem, see here). We see two ways to deal with the issue.First, one could argue that the effects of primacy go beyond the disapplication of therespective laws. Primacy could require the “resurrection” of former laws. It wouldexert not only a negative effect but also a positive one. The Court of Justice hasapplied this logic in cases concerning the jurisdiction of the notorious disciplinarychamber at the Polish Supreme Court. In A.K. and Others, the CJEU was facedwith a reference from a Supreme Court chamber that essentially asked whether ornot it should assume its previous jurisdiction over cases that were – under the newlegislation – assigned to the disciplinary chamber. As the disciplinary chamber doesnot meet the EU requirements of judicial independence, the CJEU ascertained thatthe formerly competent chamber should reassume its jurisdiction. In this sense, theprimacy of EU law prevents Polish courts from applying those provisions that conferjurisdiction to the disciplinary chamber and leads to a resurrection of the former law.The situation of Hungarian electoral laws is certainly different. These laws have beenamended multiple times since Fidesz came to power. Which laws should “resurrect”?To identify this legislation would be the new government’s task. Still, it would beimportant to publish the identified former legislation as, for instance, an annex to thedecision expressing the government’s intention to disapply the respective cardinallaw.Another way to address the problem is to set aside the constitutional requirementof a qualified majority for new legislation. The argument is that the constitutionalprovision that requires the qualified majority violates EU values. After all, indemocratic states and, in particular, in unitary states, the default rule for democraticdecision-making is a simple or absolute majority. Qualified majorities are theexception and require special justification. A comparison of EU Member Stateconstitutions demonstrates that supermajority requirements are extremely rare. Evenin the case of “special laws”, such as the “lois organiques” under Article 46 of theFrench Constitution, the “ley organica” in Article 81 of the Spanish Constitution, orthe “lege organic#” pursuant to Article 73(3) of the Romanian Constitution, only anabsolute parliamentary majority is required.A two-thirds majority is usually reserved to constitutional amendments. In its opinionof 20 June 2011 on the new Hungarian constitution, the Venice Commissionspecifically pointed to these issues. It stressed that parliaments should act in aflexible manner in order to adapt to new conditions and challenges. The more policyissues are transferred beyond the powers of simple majority, the less significancefuture elections will have, and the more possibilities a two-thirds majority has ofcementing its political preferences in the country’s legal order. In Austria, where thishas often happened, such laws have cemented agreements between the two mainpolitical camps of the country. This is certainly not the case in Hungary.Qualified majority requirements are especially at odds with European standardsif their main purpose is to secure the ruling party’s victory. In this case, a violationof Article 2 TEU can be easily established, with the consequence of setting asidethe two-thirds requirement. In consequence, the general rule for decision-making- 5 -under the Hungarian Fundamental Law steps in. The new majority can enact a newelection law with a simple majority (Article 5 (6) of the Fundamental Law).V. OutlookIs all this legal science fiction? It is certainly not legal practice yet. However, EU lawhas been a dynamic legal order since 1963 by having responded to the challengesof the time, often by creative lawyering. Any state that acceded to the EuropeanUnion accepted its dynamic legal order. Along that path, the Court of Justice hasestablished the applicability of EU values in 2018 to protect the Union’s normativeessence. This step has found overwhelming support from many sides. Our proposalis simply another step along that path.In this contribution, we argued for the legal feasibility of this step only. Being justlawyers, moreover from another country, we do not see ourselves in a position tomake recommendations. Any such decision would need to consider several otherissues, including its political feasibility. At the same time, we strongly believe thatthe newly elected government, and not EU institutions, must decide on whether toembark on that path. Although the developments in Hungary concern all Europeancitizens, the basic decisions on how to walk back to full democracy are for thoseEuropean citizens who are also Hungarians.- 6 -

How to Set Aside Hungarian Cardinal Laws

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How to Set Aside Hungarian Cardinal Laws

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