Hungary court avoids EU conflict after Orban challenge

The ruling is the latest chapter in a string of tussles that Orban's government has had with Brussels over legislation on issues such as LGBTQ people, independent media and civil society
AFP

Hungary’s constitutional court on Friday rejected a bid by Prime Minister Viktor Orban’s government to challenge an EU court ruling against its harsh asylum policy.

The court’s decision meant it avoided a ruling on the primacy of European Union over Hungarian law, averting open conflict with Brussels.

The court however did rule that Budapest can act to protect Hungary’s sovereignty.

Budapest had asked the court earlier this year to review a ruling from the European Court of Justice (ECJ) that it broke EU law by allowing police to deport or physically “push back” asylum-seekers across the Serbian border.

The ruling is the latest chapter in a string of tussles that Hungary, like ally Poland, has had with Brussels over legislation that has also targeted LGBTQ people, independent media and civil society.

In December 2020 the ECJ ruled that Hungary must suspend its practice of pushing back asylum-seekers to the Serbian side of its border fence erected in 2015 without launching any formal procedure.

According to the court, the petition by Justice Minister Judit Varga could “not be the subject of a review of the ECJ judgement”, nor can it lead to an “examination of the primacy of EU law” although it said .

But in a nuanced statement it said that in areas of joint legal jurisdiction between Brussels and Hungary, Budapest has the right “to ensure the effectiveness of the joint exercise of competences”.

“Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the EU take the measures necessary to ensure the effectiveness of the joint exercise of competences,” it said.

Legal expert Petra Bard told AFP the court’s decision “shifted the responsibility back to the government to oppose EU law, if they wish to do so”.

‘Milestone decision’

The ruling on Friday was a “milestone decision”, Justice Minister Varga said afterwards in a Facebook message.

It meant that Budapest can “adjust its national rules to reality by adopting additional, unique measures,” she said.

“With this judgement, the constitutional court has built a strong legal barrier in addition to the physical closure of our borders,” she said, referring to the fences.

But rights group the Hungarian Helsinki Committee hailed the constitutional court ruling.

Budapest’s “attempt at sabotaging the ECJ ruling judgement has failed, the Constitutional Court refused to question the primacy of EU law,” it said in a statement.

“No green light to disregard ECJ rulings, no more excuses, pushbacks must end now,” it said.

Last month, during a trip to Budapest, EU Justice Commissioner Didier Reynders said that challenges to ECJ rulings were “unacceptable”.

“We will of course continue our action to ensure that the Hungarian gvt implements the decision of the ECJ,” he said Friday.

‘Limits of EU competences’

The Hungarian petition mirrored a Polish constitutional court ruling in October that challenged EU law and plunged the bloc into crisis.

Soon afterwards Orban signed a government resolution in support of Warsaw that called on EU institutions to respect the sovereignty of the bloc’s 27 member countries.

“The primacy of EU law should only apply in areas where the EU has competence, and the framework for this is laid down in the EU’s founding treaties,” said the resolution.

National law-enforcement bodies, in particular constitutional courts and tribunals, have the right to examine the scope and limits of EU competences, it said.

“Unlike its Polish counterpart the Hungarian constitutional court refused today to enter into an open conflict with the EU,” said Bard, Research Affiliate at the CEU Democracy Institute in Budapest.

“Still, (Friday’s ruling) offered lots of ammunition to the government to continue its illegal practices, contending that migration is a shared competence and if the EU is silent on a matter or if a piece of EU law is not effective, the national authorities can step in,” she told AFP.

“The court however failed to make clear that in the exercise of these residual competences the national legislation must not contradict EU law,” she said.

Orban’s chief of staff Gergely Gulyas told reporters that the court decision gives “clear direction” to Hungary’s migration policy and underpins all of the government’s decisions taken so far, while clearing the way for their full implementation.

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