It is a matter of time, and there may be a discussion in Hungary between Poland and the European Union

File: According to the Polish Constitutional Court, the Polish Constitution takes precedence over EU law, and therefore the government is not obligated to comply with the ruling of the European Court of Justice in the case of the Disciplinary Chamber. The government says the European Court of Justice is extending the powers of EU bodies beyond the treaty. How true is this argument? Does national jurisdiction really take precedence over EU law?

Attila Vincis: There are several basic principles of EU law: one of them has priority, but at least equally important is the principle of limited ad hoc powers. Priority means, quite simply, that in the event of a conflict between a Member State and EU law, EU law applies. That is why the source of this priority is important, because it is not expressly stipulated in the founding treaties, but is determined by the case law of the European Court of Justice. This has been accepted with some reluctance by Member States, particularly by their Supreme and Constitutional Courts, and places special emphasis on limited ad hoc powers, i.e. this priority can be accepted only in areas where Member States expressly delegate their powers. The European Union through contracts. If the union is created by the member states in accordance with treaties, then EU law must be adhered to only in so far as it has been expressly agreed, which cannot take precedence over a non-existent act. This is a position based on international law that prioritizes national constitutional law.

However, the European Court of Justice does not always interpret the clear provisions of the founding treaties in the direction of deepening integration, and therefore it is often accused of going beyond written law and creating a right to apply it.

The question, of course, is whether the European Court of Justice or a court in a member state has jurisdiction to decide this matter. National courts decide on the basis of national law, the EU court on the basis of EU law, that is, they have a different legal starting point, so the question is often the starting point that we give priority.

How comparable was this situation when the German Constitutional Court ruled that the European Central Bank’s asset purchase programme, which the European Court of Justice found to be in line with EU law, was incompatible with the German constitution?

It is certainly similar in that both the German and Polish courts have made the same or at least very similar arguments (and the Hungarian Constitutional Court also has very similar statements for this purpose). The difference in the German case is that the ECB’s bond-buying program has at least a highly controversial legal basis in the legal literature, and the arguments of the German Constitutional Court can be taken somewhat more seriously, But this does not change the fact that the German Constitutional Court has developed the conceptual structure and set of arguments with which the Polish Constitutional Court also operates. However, the consequences will be similar, and the commission will also initiate proceedings against Germany for a violation of this decision, so there are no double standards.

Was there precedent for a member state not expressly implementing a judgment of the European Court of Justice? What can be decided in a situation where a Member State does not respect a CJEU decision?

Of course, in many cases, such as the transfer of directives or the recovery of illegal state aid, this was not unprecedented, some were more politically sensitive, others less important, but it was not uncommon to do so on the grounds that the law of states had Members take precedence. It is questionable, of course, what kind of decision this was. If we are talking about infringement measures, then the Commission will decide whether it considers the measures of the Member States sufficient. If a Member State does not comply with the judgment, the Commission proceeds with another breach procedure, at the end of which the Member State can be fined, usually until the judgment is carried out, in the form of a daily subsistence allowance. The extent of this depends on the economic capacity of the member state and the severity of the breach, as Poland currently pays, for example, a fine of half a million euros per day until it closes the Turow coal mine, which has also been ordered by the European Court of Justice. In the case of other types of decisions, such as interpretations made in preliminary judgment proceedings, it is up to the referring court to implement the correct interpretation of EU law, in the absence of which the state is liable for damages.

The decree adopted by the Hungarian government this weekend includes the following: “Union law may prevail only in those areas in which the European Union has jurisdiction, the framework of which must be defined in the treaties on which the European Union is founded.”Could there be a legal dispute similar to the one in Poland, or do you see parts of the Hungarian Basic Law and the Treaty on European Union (such as the terms of accession and constitutional amendments that have taken place since then) that could lead to such a conflict?

Of course it can happen. Since 2016, the Hungarian Constitutional Court has used the arguments used by the German Constitutional Court in more and more decisions, such as overstepping the limits of power, constitutional identity as a limit to the precedence of EU law, and the principle of preserving sovereignty, that is, in this case, it must be assumed that the state was not You intend to delegate that authority.

In this regard, the Basic Law has been amended in a number of issues in an excellent way to escalate such a conflict, and a number of issues have been raised under the concept of constitutional identity by a two-thirds majority in Parliament.

What impact would the EU legal system have if a member state decided not to implement the decisions of the CJEU? Could this set a precedent and actually undermine the strength of EU legislation?

Failure to apply a law or court ruling in any way undermines the strength of the legal system, just as it undermines the strength of all normative systems (ethics, morals, religion, etc.) and the doctrine placed in it if they are not. Continued. Without the minimum efficacy of the law, no one would believe that he could be disadvantaged in the event of non-compliance.

EU law is no exception, if one of the member states does not systematically implement EU law, other countries are not expected to tolerate it.

Of course, these are not individual cases of secondary importance, as they are found in all member states, but rather systematic violations in which a member state expressly states that it does not have to implement EU law because its own law takes precedence.

Dr. Vince Attila, LL.M.
Private university teacher, Wirtschaftsuniversität Wien
Assistant Professor, Masaryk University of Brno, Institute of Judicial Studies

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