Friday 10th December 2021
Dispute over primacy of EU law
Orban fails before the constitutional court
After the ECJ ruled a year ago that Hungary had to change its asylum policy, Prime Minister Orban did not give up: He tried to take legal action before the national constitutional court against the ruling on the primacy of EU law – and already failed when it came to admissibility.
Hungary’s Prime Minister Viktor Orban failed in his lawsuit against the primacy of EU law over national law: the Hungarian Constitutional Court declared that it was not competent to question a judgment of the European Court of Justice against Hungary’s controversial asylum policy or the primacy of EU law to consider”.
Orban’s right-wing nationalist government had previously tried to challenge the verdict in the constitutional court. This has been criticized as an attempt to overturn the primacy of EU law over national law. In December 2020, the European Court of Justice sentenced Hungary to a lawsuit by the EU Commission for violating its asylum rules against EU law. The judges certified that Budapest had “illegally detained” migrants in camps on the border with Serbia and deported refugees without regard to the applicable guarantees. As a result, the EU border protection agency Frontex stopped its work in Hungary.
Orban’s government had submitted the ECJ ruling to the Hungarian Constitutional Court for review. The move followed a controversial decision by the Polish Supreme Court in October that challenged the principle of the primacy of EU law over national law. Orban had defended the Polish decision against sharp criticism from Brussels and other European capitals.
The Constitutional Court also emphasized that Budapest can exercise its authority in the areas of competence shared between Brussels and Hungary “until the EU institutions take effective measures”. National enforcement authorities, in particular constitutional courts and courts, would also have the right to review the scope and limits of EU competences.
“Directional judgment”
Hungary’s Justice Minister Judit Varga spoke of a landmark judgment in favor of her government. It is “a strong legal barrier in addition to the physical closure of our borders,” she said on Facebook. In order to protect the borders effectively, Hungary has the right “to adapt its national regulations to the reality”.
The Helsinki Committee for the Defense of Human Rights did not follow this interpretation. “The Constitutional Court did not give the government what it wanted,” said the organization. The situation is “clear: the judgment of the ECJ must be implemented and the inhumane treatment of asylum seekers must stop”.
During a visit to Budapest in November, EU Justice Commissioner Didier Reynders described Budapest’s lawsuit as “unacceptable”. The commission initiated proceedings for disregarding the ECJ ruling. Hungarians face financial sanctions. The EU Commission now wants to “analyze in detail” the decision of the Constitutional Court. “What we conclude from this is that this decision does not violate the principles of the primacy of European law,” commented a spokesman when asked in Brussels.