Hungarian Yearbook of International Law and European Law

Miscellaneous

Mutual Constitutional Tolerance in the EU, with Special Emphasis on the Recent Case Law of the Polish and the Hungarian Constitutional Court

Keywords constitutional tolerance, constitutional court, judicial dialogue, supremacy, constitutional reservations
Authors György Kovács
Author's information

György Kovács
György Kovács: attorney-at-law, Budapest; visiting lecturer, Pázmány Péter Catholic University, Budapest; president, Hungarian Fulbright Association, Budapest.
  • Abstract

      For more than five decades, the constructive and responsible judicial dialogue concerning the primacy of EU law over the national constitutions, have significantly contributed to the creation of a more democratic EU, with a strong and efficient, multi-level fundamental rights protection. For five decades, national constitutional courts and the CJEU have avoided encroaching upon each other’s powers and inflicting lasting damage on the European integration and on the rule of law itself. In recent years, however, we have witnessed the worrying signs of a profound defiance towards the supremacy of EU law by some national constitutional courts, particularly in Germany, Romania and in Poland. As it became clear from the consequences of these decisions, defiance of national constitutional courts regarding their obligations based on EU law does not pay off. Namely, national courts and authorities will be under the legal obligation based on EU law to ignore such a decision brought by the national constitutional court, which renders an EU legal act inapplicable; and – as it happened in case of Germany and Poland - it will most likely result in infringement proceedings. The right approach instead, is to continue an open and direct judicial dialogue, as long as it is necessary, to find a solution for domestic constitutional concerns, which is in compliance with the legal obligations under EU law of the Member State in question.

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