Hungary’s top court issues ruling in immigration row with EU

Hungary has the right to apply its own measures in areas where the European Union has yet to take adequate steps for common implementation of EU rules, the Hungarian Constitutional Court ruled on Friday (10 December).

The Hungarian court has been considering a challenge launched by Prime Minister Viktor Orban’s government to a December 2020 EU court ruling that Budapest had broken Union law by restricting access to the international protection procedure for asylum applicants in transit zones and unlawfully detaining them.

At the time, the EU’s top court said Hungary had failed to fulfil its obligation to give effective access for asylum-seekers to submit their application, who were thus confronted with “the virtual impossibility of making their application.”

Since the EU migration crisis in 2015, the Hungarian government – which has fiercely opposed the idea of taking in migrants and refugees – has repeatedly come under fire from the EU over its practices.

The government then asked the country’s constitutional court to interpret the relationship between the Hungarian Fundamental Law and EU law in the context of the implementation of the judge’s decision in Luxembourg.

Legal experts asked by EURACTIV prior to the judgement voiced concern that the Hungarian Constitutional’s Court’s decision could lead to a similar situation like the one created by its Polish counterpart in October, when it challenged the primacy of EU law over national rules, a core tenet of the bloc’s legal order

Polish court rules against supremacy of EU law, deepening row with Brussels

Poland’s highest court ruled on Thursday (7 October) that parts of EU treaties are incompatible with the Polish constitution, challenging a key tenet of European integration in a sharp escalation of a dispute between Brussels and Warsaw.

“The very fact that the government has initiated this procedure shows that the Hungarian government is keen to follow a similar path to that of the Polish government,” Szabó Máté, programmes director at the Hungarian Civil Liberties Union, said then.

In its Friday ruling, the Hungarian Constitutional court said “where the joint exercise of competences” between the EU and Hungary “is incomplete, Hungary shall be entitled, … to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences.”

It also said “where the incomplete effectiveness of the joint exercise of competences … leads to consequences that raise the issue of the violation of the right to identity”, the Hungarian state is obligated to ensure that right.

“The protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure shall be part of its constitutional identity,” the Hungarian constitutional judges said.

The Hungarian government proclaimed victory following the ruling. “With this judgment, the Constitutional Court has built a strong legal barrier in addition to the physical closure of our borders,” Justice Minister Judit Varga wrote on Twitter.

“In this procedure, the Hungarian Constitutional Court did not examine the primacy of EU law, nor did it focus on the review of the former judgment of the Court of Justice of the European Union,” she added.

Legal experts, however, said the Court had actually refused to back the Hungarian government.

“Somewhat unexpectedly, Orbán’s captured constitutional ‘court’ backed away from opening direct conflict with EU,” said Laurent Pech, a professor of European law at Middlesex University in London.

“Instead, Orbán’s constitutional court has issued a schizophrenic judgment which simultaneously seeks to appease Orbán by offering some lyrical developments on Hungary’s ‘constitutional identity’ and essentially equating illegal immigration with a threat to this identity,” he added.

The Hungarian Helsinki Committee said in a statement that “the government’s attempt at sabotage has failed, and the CJEU decision must be implemented”.

“The situation is clear: The ruling of the CJEU must be implemented and the inhumane treatment of asylum-seekers must end,” the NGO added.

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