"I cannot see how abolishing the Constitution would be compatible with EU law.”
April 01. 2022. – 04:22 PM
If the opposition rewrites the constitution with only a slight majority, Hungary could find itself in more serious legal disputes with the European Union than ever before, says German constitutional lawyer Armin von Bogdandy, who specialises in EU law. The professor, who has been awarded an honorary doctorate by Eötvös Loránd University (ELTE), says that although there are strong signs that Hungary is violating the EU's fundamental values, the government is acting much more ‘intelligently’ on legal issues and is not using the courts to take on political opponents in the way the Polish political leadership is. He says the rule of law mechanism is necessary and the primacy of EU law could be even stronger because of the battles between Warsaw and Brussels.
Armin von Bogdandy is a descendant of the Hungarian noble family Bogdándy from Cluj, born in 1960 in Oberhausen, Germany. He graduated from the University of Freiburg in 1984, was appointed Professor at the Goethe University in Frankfurt in 1997 and since 2002 has been Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. In 2020, he was awarded an honorary doctorate by ELTE, where he is a lecturer. He specialises in public international law and the legal system of the European Union, and as a constitutional lawyer, he researches structural changes affecting public law.
Telex: Although the European Commission has already launched a number of infringement procedures against most Member States for various breaches of EU law, these procedures usually drag on for years without any real result. What instruments do you think the EU institutions could use to take more effective action? Could the rule of law mechanism be a suitable instrument?
Ármin von Bogdandy: The question you ask is how to use legal instruments to influence political processes. This is a very difficult question, which I can answer less as an academic expert than as an interested citizen who observes these processes. We do not know how to act effectively in these matters — that much is obvious. However, we are in a new situation so we have to try different things.
I think it is important to note that something is happening, and that is important. Even if the measures taken have not yet brought the hoped-for results, they are still more than nothing, because they make it clear that certain governmental actions — laws, measures, forms of action — are considered unacceptable. This is important because, in principle, it is assumed that in all Member States the Constitution and its application are an expression of the fundamental values of the Union as set out in Article 2 of the Treaty on European Union.
If nothing were to happen on the EU level, the assumption would be that certain practices by these governments are part of a flourishing, constitutional European coexistence. But these measures have for the moment interrupted the normalisation and mainstreaming of the process, and this is a serious and very important consequence.
The second is that these processes require a lot of patience and time, which is also evident from the fact that they are designed for one electoral cycle, i.e. 4-5 years. It also includes measures that are very important for the government concerned and that are somewhat understood and supported in the countries. Therefore, I do not think that we can expect things to be sorted out quickly, but we have to accept that we are talking about long processes.
T: In an earlier paper, you wrote that those authoritarian tendencies can be felt in several EU countries, citing the transformation of the Hungarian and Polish constitutional courts as examples. You also wrote that the Polish process had taken a more dramatic turn than the Hungarian one. Why do you think the situation is different in Poland?
AvB: First of all, the difference between Hungary and Poland is that in Hungary constitutional procedures and the formal rule of law are respected, at least in most cases. In Poland, on the other hand, there are very clear indications that both the constitution and the law are being violated, and to a significant extent.
The second point is that it seems to me that the Polish government wants to use the judiciary, aligned with the executive, as a kind of extended arm to sanction its critics. There is the case of Judge Igor Tuleya, or the constitutional lawyer Wojciech Sadurski, the former Ombudsman Adam Bodnar and many other people who have stood up against the political developments — who are now being subjected to legal proceedings where the judiciary, acting as an instrument of the government, is playing the role of oppressor.
As far as I can see, there have been no such developments in Hungary. I also see that the Hungarian Constitutional Court is still operating differently from the Polish Constitutional Court, where one gets the impression that it is a governmental body. These three aspects make it worthwhile to distinguish the Hungarian and the Polish cases from each other. I think it is very important that when we look at something, we look very carefully at the source of the problems.
If there was a change of government in Poland, the question of how to deal with wrongly appointed judges could arise. This is a huge problem, not only from a technical point of view but also from the point of view of the functioning of the legal system — and I think it is not a problem in Hungary. I think you can see how many differences can be listed, and it is worth mentioning one more:
I find that the Hungarian government is somehow much smarter than the Polish government when it comes to EU law. Those who deal with these cases all say that communication with the Hungarian authorities is completely different from that with the Poles.
Many differences can therefore be observed, but at the same time, we must add that in both countries there are very strong indications that the values mentioned in the second article of the Treaty on European Union (TEU) are not taken into account. We must point out that this is a common denominator.
T: The European Parliament is of the same opinion — last October they condemned the Polish Constitutional Court as illegitimate because it was seen as a political tool used by the Polish government. Has there been a precedent, an example of a similar case in the history of the European Union?
AvB: One of the most important recent examples for me is the case of Venezuela, where Hugo Chávez and then Nicolás Maduro used the constitutional chamber of the Supreme Court in a similar way. Although it is not a constitutional court in its own right, this chamber has a similar role, which both Chávez and Maduro have filled with their supporters—allowing the Venezuelan government to influence partly the judiciary and partly the social and political life of Venezuela in a way that would have been difficult to achieve otherwise. Of course, a constitutional court aligned with the government can become an incredibly powerful weapon for the authorities, as we have seen in the decisions against the Court of Justice of the European Union or the European Court of Human Rights. But the Polish case is not unique in this respect.
The history of authoritarian regimes has also shown how justice has become an instrument of power. There were Stalin's showcase trials or the People's Court of Nazi Germany. Of course, they cannot be compared to the situation in Poland, but historically there are many examples of courts becoming weapons of executive power. If you are asking whether there has ever been an example of this in the history of the European Union — no, I am not aware of such an example.
T: Can the European Parliament's condemnation mean anything in practice?
AvB: I think it is relevant to state what has happened, both for now and for the future, because by occupying the court in this way — and perhaps even more so by the fact that the court is explicitly ruling against EU law and the decisions of the Court of Justice of the European Union — it is foreshadowing that judges are committing the crime of perversion of justice. This is a criminal offence in most legal systems. I think that there are sound legal and doctrinal reasons for saying that these judges, who have become instruments of the regime in clear breach of EU law, are committing a miscarriage of justice and, with it, a disciplinary offence. I think this is extremely important because, after a change of power, it could create a way to remove these judges from office and restore the rule of law as the basis of the justice system.
T: Where do you think the ruling of the Polish Constitutional Court could lead? Could EU law be weakened by this precedence?
AvB: It could lead to a weakening, but also to a strengthening of EU law. Of course, it could weaken the EU legal system, as the Polish court has just said, and the Hungarian court is leaning in that direction, as is the second chamber of the German Federal Constitutional Court. [The German AB is bicameral: while the first chamber deals with the review of norms and constitutional complaints, the second chamber settles jurisdictional disputes within the state – the author.] They have expressed themselves most strongly in this direction, but similar statements have also been made by courts in the Czech Republic or Denmark, albeit not so strongly. The topic is also intensively addressed in the academic literature.
The reason why this process could lead to a weakening is that it could easily become a serious problem. Let's not forget that this year there are presidential elections in France, and there are serious candidates representing Viktor Orbán's view of the EU. Next year, there will also be elections in Italy, where there are also very strong parties representing this view. In this respect, it is possible that the isolated cases so far could become a larger wave, and if the political majority changes, the primacy of EU law could be called into question politically.
But the opposite may also be the case, as the question of primacy has long been an issue, first declared by the Court of Justice of the European Union, then reiterated, and accepted, albeit with gritted teeth, by the national courts. However, this has never been a matter of great political debate — now is the opportunity for that. If the Member States and political systems are clearly behind this, then the primacy of EU law and its recognition – especially its unconditional recognition – may become an elementary consequence for all Member States, and the courts will have to take this into account accordingly. So, it could go either way.
T: We are seeing intense legal wrangling between the Polish government and European institutions—but as you mentioned earlier, the Hungarian government is ‘smarter’ in these matters. But could similar legal disputes with the EU institutions follow the spring elections in Hungary?
AvB: Certainly, and in all directions: there are rumours in the opposition in Hungary that the existing Fundamental Law would be abolished by bypassing the current constitutional procedures. I cannot imagine that such a procedure would be compatible with the values enshrined in Article 2 TEU. So, whatever we think of the Constitution in force, I do not believe that it could be abolished without any procedure. From this point of view, it is also possible that serious legal disputes and conflicts could arise.
Indeed, if the opposition wants to change, shall we say, in a revolutionary way, the current order and the current institutional system and its staff, it will at least raise a lot of questions with regard to the second Article of the TEU. I cannot, of course, say that this is completely out of the question and it cannot be inferred from Article 2 TEU that a democratic revolution is not permissible.
However, I cannot imagine that, under the second article, it would be permissible to say, with a referendum and then a simple majority, that that was it and now we are doing something else.
There will be a series of very complex legal issues to deal with, and perhaps a new Hungarian government will need some perseverance and common sense to use the majority it has gained not as Orban did with his majority, or as happened in Poland—but to go down the path of more complex procedures.
T: According to the opposition, the government would retain power through the leaders appointed to head the various institutions, despite an unfavourable election result. Do you think that people appointed by the Fidesz majority can be removed from office—or are leaders elected by a two-thirds majority, possibly for nine years, irremovable?
AvB: I think we need to look at the actions that these people have taken in office. All judges are subject to disciplinary systems, and the same applies to the heads of all other institutions—they are not exempt from the legal system. If it can be shown that these heads of institutions have supported or even ordered measures that seriously infringe EU law, it will of course be possible to remove them from office. The biggest weapon in this respect is criminal law, but there are of course other instruments of disciplinary law that can be used to clean up these appointments—in a way that is compatible with the European rule of law.
Translation: Kamil Jarończyk (Visegrad Insight)
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