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Constititional Judiciary in Central Europe and the Europe Agreement: Decision 30/1998 (VI.25) AB of the Hungarian Constitutional Court

Published online by Cambridge University Press:  17 January 2008

Allan Tatham
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Extract

Against a background of increasingly intense legal harmonisation and with the prospects of Central European accession to the EU drawing ever closer, a recent decision of the Hungarian Constitutional Court, Dec.30/1998 (VI.25) AB1 has highlighted the constitutional implications of applying EC law in the domestic system of an associate state. The judgment itself concerned the constitutionality of the competition provisions of the EC-Hungary Europe Agreement (“EA”) together with Decision 2/96 of the Association Council on the relevant Implementing Rules (“IR”). While the Hungarian court is not the first of its type in an associate state to deal with the effect internally of an Association Agreement,2 nevertheless its decision offers certain insights into the judicial response to the integration process in Central Europe.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 48 , Issue 4 , October 1999 , pp. 913 - 920
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. Reported in the Hungarian [Official] Gazette, Magyar Közlöny 1998/1955, p.4565.Google Scholar

2. See Decision of Slovene Constitutional Court on the EA, 5 06 1997Google Scholar, No.Rm–1/97 (admittedly this referred to a pre-ratification amendment of the Constitution) and several decisions of the Austrian Constitutional Court in respect of the EEC-Austria Agreement, including VfGH 15 Dec. 1993, B 945/91: (1994) 116 JBl. 678.Google Scholar

3. Which did not contain any mention of international law until amended due to the change of regime in 1989/1990.Google Scholar

4. Law-Decree 27/1982 (Magyar Közlöny 1982 71, p.1218)Google Scholar which provided for the forms of promulgation and publication of international treaties. Subject to the revised Constitution and Act XI/1987 on legislation, the 1982 Law-Decree is still valid law in Hungary.

5. This form of legal rule, a norm promulgated by the government but possessing the rank of statute, is no longer used.

6. [1993] ABH [Collection of the Decisions of the Constitutional Court] 143.Google Scholar

7. [1993] ABH 327.Google Scholar

8. Magyar Közlöny 1994/1, p.1.Google Scholar

9. Magyar Közlöny 1996/120.Google Scholar

10. Lecturer at the Faculty of Law, Eötvös Loránd University [ELTE], Budapest.

11. More precisely, under s.36(1), the Parliament, the President of the Republic, and the Government have the right, prior to ratification of an international treaty, to request the examination of contested provisions thereof.

12. The Court can examine any legal rule for its conformity with an international treaty under s.1(c) of the 1989 Act, either ex officio (s.44 of the 1989 Act) or on a motion of the Parliament, one of its standing committees or an MP; the President of the Republic; the Government or one of its ministers; the President of the State Audit Office; the President of the Supreme Court; or the Chief Public Prosecutor (s.3(a)—(f) of the 1989 Act).

13. Magyar Közlöny 1997/7, p.636.Google Scholar

14. The implication seems to be that any change in the Community competition acquis, after the entry into force of the EA internally, would have to be transformed on an individual basis, as and when these changes occur, either through enactment of a statute or the passing of a decree, or through amendments to the domestic transforming measures already in force.

15. The effect of its decision was suspended until 31 December 1999. The Court may exercise its discretion and determine the date of the abrogation of the legal norm or its applicability in a given case in a different manner than that already described if justified by a particularly important interest of legal certainty or of the person who initiated the proceedings: the 1989 Constitutional Court Act, ss.42(1) and 43(1) and (2).

16. The Court had already noted that direct applicability was a peculiarly EU phenomenon.

17. The matter would therefore have been different if the EA or IR had laid down the respective criteria. Such criteria in the acquis, ECJ rulings as well as EC legal provisions, have already been incorporated to some extent in the Hungarian Competition Act, Act LVII/1996 (Magyar Közlöny 1996/56, p.3498).Google Scholar

18. Unlike the EEA Agreement, the EA and IR contain no provision limiting the temporal effect of the application of the EC competition criteria.

19. On this point, in support of its contention, the Court cited to Case C–327/91 France v. Commission [1994] E.C.R. 1–3641, 3678Google Scholar, according to which if the Commission enters into an international agreement with a non-member state, then it will be reviewable if it produces legal effects. It is to be noted that this is perhaps the first citation of an ECJ judgment made by a Hungarian judicial body.

20. As well as certain types of international treaty entered into by the Community and directly applicable in member states without further ratification/transformation.

21. The Court supported its argument on “double ruling” by express reference to the XXIVth Report on Competition Policy, COM(95) 142 final, art.402, p.284.Google Scholar

22. Such argument had previously been put by the present author in an Advisory Opinion to the Constitutional Court in this case, in May 1997.Google Scholar