The EU court essentially created from scratch the political doctrine of the primacy of EU law, which some of the literature boldly calls a legal principle, legal philosopher Jenő Szmodis, associate professor at the Faculty of Public Administration and Public Administration of the National University of Public Service told our newspaper.

What is the relationship between EU and Hungarian law? We had to take several legal harmonization steps to join, which we did, without fail. What else can they be held responsible for in domestic legal practice?

I would answer the question a bit more broadly. Namely, what is the relationship between the EU legislation and the laws of the Member States. The most fundamental problem is that the agreements establishing the European Union and its predecessor organizations did not provide for this issue. From this fact alone, it clearly follows that the two legal systems are in a kind of adversarial relationship, and possible contradictions must be resolved through negotiations. The term constitutional dialogue, which is widespread in the literature, also indicates that there is a camp of the professional approach that prioritizes dialogue over the politics of power and force, which should not be underestimated.

How did the subordinate relationship become a subordinate relationship?

That's what I wanted to get to. In 1964, in the Costa v. ENEL case, the Court of Justice of the European Union declared the primacy of Community law without having been expressly authorized to do so. In 1970, the same court stated in the Internationale Handelsgesellschaft case that member states cannot refer to their constitutional arrangements for the purpose of selective or even discriminatory interpretation of Community law. This was essentially a confirmation of the 1964 decision, which lacked any positive legal basis, with the addition that

from the outset, it tried to limit those efforts that would attempt to prevent the excesses of EU legislation by referring to the inviolability of national constitutions and constitutional arrangements.

The so-called investigation into exceeding the legislative authority. ultra vires control is primarily and traditionally carried out by the Court of the EU, but there is no clear and mature position regarding the fact that the constitutional courts of the member states are not entitled to such authority. In fact, on the contrary, in recent years, there have been more and more efforts that argue that an EU body cannot be granted exclusivity with regard to this type of control. Arguments of expediency can be raised against such ultra vires control at the national level, but there is no positive legal obstacle to this.

It should be mentioned separately that

the Treaty of Lisbon expressly mentions the concept and phenomenon of constitutional identity, which essentially appears in the treaty as a value to be protected. This in itself overrides the provisions of the 1970 decision, which was made without any authorization.

Say?

Briefly answering the question: in my opinion, the legal system of the EU and the domestic legal system are complementary legal systems, in relation to which the primacy of EU law can only prevail in the manner and to the extent that the treaties specifically allow for this, or in the manner and to the extent this priority follows logically from the agreements – taking into account the principles of necessity and proportionality. And if there is a well-founded difference of opinion between the Court of Justice of the EU and the Constitutional Court of a member state on this issue, it is advisable to provide ample opportunity to the institution of constitutional dialogue.

And the issue of legal harmonization?

Well, we really fulfilled that before joining. The main problem, however, was that under the label of legal harmonization, or rather on its tail,

a number of measures were also taken, which meant economic capitulation and self-surrender rather than the creation of clean and transparent market conditions.

And what can the EU hold accountable in domestic legal practice?

First of all, the EU and the EU court should account to the member states that the EU court could be in a quasi-legislative position by, for example, declaring the primacy of EU law.

Professionally, it is a really interesting question how they could explain the setting aside of the old Roman legal principle, "praetor ius facere non potest" (the judge does not create law). One of the most basic requirements of the rule of law is the subjection of judges to the law. Judicial legislation cannot be reconciled with this. In all cases, the so-called development of judicial law must be based on some positive rule and some indispensable, generally accepted legal principle. In the case of declaring the primacy of EU law, both factual elements were missing.

The EU court essentially created from scratch the political doctrine of the primacy of EU law, which some of the literature boldly calls a legal principle.

What exactly is the rule of law? What should be fulfilled in order for us not to be accused of its absence? At all: are these valid accusations, or are they only used to cloak political goals?

The rule of law is a jurisprudential category that also appears in certain legislation, namely as an indefinite legal concept. Of course, this does not mean that the expression and the concept have no meaning, but of course it also does not mean that it can have only one interpretation. And the realistic implementation of the rule of law shows even more diverse images than attempts to define it in the literature. On the one hand, this ambiguity is good, since individual states can build their state of law institutions in accordance with their historical, cultural and constitutional traditions. On the other hand, however, this ambiguity gives the opportunity for abuses, where stronger and more influential member states demand a certain interpretation of this concept from states that have a different stance on certain issues in heated political situations.

This ambiguity makes the concept suitable for use as a political cudgel.

To make clear the absurdity of the debates about the rule of law, let's assume that a consensus would emerge that fish soup should be cooked in every settlement on a national holiday. The government itself would also play a role in the action. Let's assume that every settlement is happy to cook its own festive food. But let's say a riverside town would have a different position with the central government on some issue, say education, and the government's response would be that the fish soup there is not even fish soup, compared to, say, a town in the steppes, which was cooked from beef and was much more like a goulash. like fish soup, but on educational issues the position there is compatible with that of the central government. Now let's also imagine that in the event of a possible dispute, a court with informal ties to the central government would have to decide on the question of what is considered a fishing license and what is not.

Returning to your question, and at the same time continuing to weave the analogy: what would have to happen in order for there to be no doubt that fish juice is fish juice? Or rather, returning to the specific question: it is obvious that it would be advisable to change the public law system of the European Union so that the Commission or an EU body thinks twice about unfounded accusations against a member state.

As long as the system of checks and balances is not implemented at the EU level, and as long as there is no legal remedy against the decision of the Court of Justice of the EU, we can hardly rule out politically motivated excesses.

Isn't this a somewhat paradoxical situation?

Of course, it is many times over, since an organization in the member states - which is only the guardian of the treaties - is taking account of rule of law issues, which itself does not meet the most basic requirements of the rule of law. I am convinced that not only the governments of the member states have a role to play in shedding light on these problems, but also the individual constitutional courts, which, based on the European, Roman-based legal culture, must hold up a mirror to the distortions that can be seen more and more frequently during integration.

Is it within the law to unilaterally cancel an agreement again and again?

Once again, we only ended up with the most basic questions of the rule of law. If a certain distribution relationship follows from the contracts and agreements, then unilateral conditions for the fulfillment of the contracts and agreements cannot be concluded afterwards. As it appeared in the daily news, even countries to which the Commission has no objections did not receive payments from the sums earmarked for restarting the economies after COVID. Ironically, we could also say that they get what we get as a reward.

In any case, the charging of interest on the amounts owed to us and, where applicable, the enforcement of the related claim should be considered.

And it would hardly be necessary to review the entire operation of the EU over the past eight years, starting from the activities carried out during the migration crisis, through the actions implemented or not implemented during the COVID, up to the measures taken in connection with the current war.

The declared purpose of the Union and the basis of its raison d'être was to promote economic prosperity and ensure lasting peace. Regardless of whether this was considered a real goal decades ago or just a kind of buzzword to promote integration as an end in itself,

it can be established beyond a doubt that, contrary to the goals it once announced, the Union is now distinguishing itself by deepening war and economic recession.

Now, an organization that acts contrary to the goals for which it was founded is not surprising if it also does not comply with other agreements.

It's not surprising, and it's also illegal. Or not?

Of course. That is why it is appropriate to use a reservation of rights when fulfilling the new and new requirements by the member states, pointing out that although as an expression of our cooperation and good intentions, we comply with requests that do not yet threaten our constitutional identity, nevertheless, these requests have no legal basis and cannot be based on the future non-existent EU powers.

Hungary is trying to preserve what we call sovereignty, while the Union is apparently the enemy of national sovereignty. Is there a chance against external pressure and blackmail?

It is also true here that everyone does their job. Referring to the moving target of an "ever-closer union" in the treaty, the federalists are trying to erode the sovereignties of the member states and create an EU sovereignty in order to later transfer it to some global superpower, as Jacques Attali meditated on in his 2003 book. In comparison, sovereign governments have in mind the entirety of the treaties and their publicly announced goals, peace, security and economic prosperity. Fortunately, the Treaty of Lisbon, as I mentioned, is concerned with constitutional identity.

This in itself presupposes that our constitution, and thus our sovereignty, cannot be disputed.

Moreover, Hungary has a constitutional tradition of more than a thousand years, which can be considered exceptional in the Union. Our Basic Law represents a special value, which, by defining the achievements of our historical constitution as a framework for legal interpretation, also commemorated the Holy Crown and opened up an opportunity to draw from our incomparably rich constitutional tradition.

It is not that a cartal constitution paradoxically restored the historical constitution, but that a law of outstanding importance, the Basic Law, created the connection between our modern legal system and our ancient constitutional tradition.

It did not "resurrect" institutions and put them back into effect, but made constitutional values ​​accessible in legal reasoning, which must be taken into account when interpreting the law. Namely, also during the negotiations with the Union and its organs.

Featured image: Imre Varga / MH