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Conflict of jurisdiction between Brussels and the EU’s East getting nasty (Part 3)

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Hungarian Constitutional Court says national authorities must make up for EU inaction on immigration

Part 1: Warsaw demands EU treaties be complied with and refuses to pay fines imposed by the ECJ

Part 2: EU case law vs national constitution: rulings and counter-rulings by ECJ and Romanian Constitutional Court

Unlike the recent judgments of Poland’s and Romania’s constitutional courts, the judgment issued on 10 December 2021 by the Hungarian Constitutional Court regarding the European Court of Justice’s ruling of 17 December 2020 does not reaffirm the primacy of the Hungarian constitution or law over EU law or the ECJ’s case law. At least not in a straightforward manner. Indeed, as stated in the Hungarian court’s judgment, the interpretation of the Hungarian Basic Law requested by Viktor Orbán’s government regarding immigration policies “does not extend to the examination of the primacy of EU law”.

Thus, this judgment has nothing to do with that of the Polish Constitutional Court which enraged the Brussels elites last October. The Polish judgment, like the judgments of a similar nature delivered by the Romanian Constitutional Court in June and December last year, concerned an exclusive competence of the member states: the organisation and functioning of the judiciary.

These two constitutional courts have therefore opposed head-on the judicial putsch attempted by the ECJ, which has been acting with the support of the European Commission and the European Parliament, aiming to extend the EU’s jurisdiction and transform the nature of the European supranational organisation without a new treaty.

The Hungarian judgment, on the other hand, concerns a shared competence: immigration policies. But in this area too, it provides a response to the ECJ’s dangerous judicial activism by stating some general principles that now allow the Hungarian government to say that it will not apply the ECJ’s rulings when they go against an effective fight against illegal immigration.

The Hungarian Constitutional Court stated in its 10 December judgment that “when the exercise of a shared competence by the institutions of the European Union is incomplete, Hungary is entitled, in accordance with the presumption of retained sovereignty, to exercise the non-exclusive competence of the Union in question until the institutions of the European Union take the necessary measures for the effective exercise of the shared competence.” In their decision, the Hungarian constitutional judges also state that “when the failure to exercise competences jointly has consequences that may affect the right of the people living on the territory of Hungary to their own identity, the Hungarian state is obliged, within the framework of its duty to protect the institutions, to ensure the protection of this right”, and that “the protection of the inalienable right to determine the territorial unity, the population, the form of government and the organisation of the Hungarian State is a part of constitutional identity.

Thus, if the EU refrains from acting against illegal immigration, including because of the ECJ’s case law, the Hungarian authorities have the duty to make up for the European shortcomings through national policies. This is all the more true since the Hungarian Constitutional Court, in its ruling of 10 December, considers that people’s right to their national identity is a fundamental right. Specifically, it states that “a person’s traditional social environment is part of his or her identity and that the state has a duty to ensure that changes in that social environment do not violate his or her identity’s constitutive elements.” Moreover, for the Hungarian Constitutional Court, “the exercise of joint powers through the institutions of the European Union cannot lead to a lower level of protection of fundamental rights than that required by the Basic Law”,

which is after all a way of reaffirming the primacy of the Hungarian Constitution of 2011 over EU law when EU law does not allow for the defence of citizens against mass immigration.

In its judgment of 17 December 2020 which led Viktor Orbán’s government to turn to the Hungarian Constitutional Court, the ECJ followed the European Commission’s request and condemned Hungary for having violated several European directives: the “return” directive, which is supposed to prohibit “pushbacks” at the border, the “reception” policy, which severely limits the possibility of detaining asylum seekers in closed centres, and the “procedures” directive, which regulates the examination of asylum applications. The ruling followed another ECJ judgment in May 2020 that forced Hungary to close its “transit zones” of Röszke and Tompa on the border with Serbia. In these closed centres, asylum seekers were held until a decision was taken on their request for asylum. Pending this decision, they were only allowed to leave the migrant centre to return to Serbia, thus avoiding situations such as those seen for years in Calais, France, or Ventimiglia, Italy, to name but two.

Not being allowed to keep asylum seekers in closed centres, in 2020 the Hungarian authorities removed the possibility of applying for asylum from Hungary, and an asylum seeker must now apply to a Hungarian consulate in a foreign country. This development has therefore only reinforced the practice of pushbacks at the border.

However, in its decision of 17 December 2020, the ECJ affirmed a European principle of non-refoulement, that is, forbidding pushbacks, and rejected Hungary’s argument that the migration crisis would have justified derogating from certain rules of the “procedures” and “reception” directives, with a view to maintaining public order and safeguarding internal security. It should be noted that the ECJ’s decision came after a massive influx of migrants since 2015, with the proven presence of Islamic terrorists among those illegal immigrants.

It is also interesting to note in this regard that by prohibiting pushbacks at the border, not only has the ECJ made the protection of the European Union’s external borders against illegal immigration illusory, but its rulings run counter to the case law developed by the European Court of Human Rights. In addition to the fact that the ECHR had validated the principle of the Hungarian transit zones in a November 2019 judgment, it also found, in a judgment delivered in February 2020 concerning Spain, that pushing back immigrants seeking to force the crossing of the border in Ceuta and Melilla, from Morocco, was not contrary to the European Convention on Human Rights. In November 2020, the Spanish Constitutional Court also validated this refoulement practice, which had been implemented for years by successive governments in Madrid to defend the border in Ceuta and Melilla, two Spanish enclaves in North Africa where fences had been set up long before the much decried Hungarian fence erected from 2015 on the border with Serbia.

Last 21 December, Hungarian Prime Minister Viktor Orbán therefore declared that, following the 10 December ruling of the Hungarian Constitutional Court, his government would not change the way it protects its part of the Schengen area’s external border and would not comply with the requirements of the European Union’s Court of Justice in the field of immigration.

The EU-27 should find comfort in Hungary’s staunch defence of the EU’s external border, but Hungary itself will be exposed to heavy fines that the European Commission will surely request from the ECJ.