On 13 December 2022, an international academic conference was held in Budapest on the relationship between the European Court of Justice and the constitutional courts of the Member States, and the issues that determine them, including sovereignty and the constitutional identity of the Member States. The event was organised jointly by the Central European Academy (CEA) and its partners, including Pázmány Péter Catholic University, which offered the premises of its Faculty of Law as a venue for the conference.
In addition to the above-mentioned organisers, the event was co-organised by the Ferenc Mádl Institute of Comparative Law and the Central European Comparative Law Association. The conference itself was organised in the framework of the Central European Professors' Network, a flagship project of the Central European Academy. The conference was opened by Katarzyna Zombory of the Central European Academy, who chaired and moderated the first panel discussion of the conference. She welcomed the participants and introduced the co-organisers of the event, before handing over to Professor János Ede Szilágyi.
Professor Szilágyi welcomed the guests and participants, and thanked the members of the research team and the organisers of the event. Before presenting the activities of the CEA, he underlined the importance of the theme of the conference. Following Professor Szilágyi's speech, Katarzyna Zombory invited the leader of the research team, Zs. András Varga to present the work of the research group. After thanking the CEA and the organisers of the event, the professor detailed the group's main field of research. He mentioned that the group aims to understand and summarise the constitutional and jurisprudential responses of Member States to the development of EU law. According to him, recent events show that issues such as the primacy of EU law and the balance of power between the CJEU and Member States' constitutional courts are increasingly being debated, which justifies the need for research on this topic. He then introduced the members of the research team, their work plan, and the European standards and case law relevant to the conference.
The conference continued with the reflections of Bertrand Mathieu, from the Panthéon I Sorbonne University of Paris, who spoke about constitutional values at European and national level. He noted that European values are largely derived from the values of nation states and that although the EU creates its own values, these can become fragile if they are divorced from national values. He also mentioned that values in European law are often broad concepts that can refer to very different rules depending on who interprets them. Turning to the relationship between legal systems, he noted that there is no uniform hierarchy of norms between EU law and national law. Professor Mathieu considered that this complex situation should be remedied by defining national and EU competences by agreement. Finally, he said that while the dialogue between the courts is important, the final decision on this issue should be taken by the political circles.
The next speaker was Alexander Graser from the University of Regensburg, who summarised the position of the German Federal Constitutional Court on European law. He began by pointing out that until 1992 the German constitution provided little basis for supranational initiatives such as the EU, and that the "eternity clause" of the German constitution adopted in Bonn was widely seen as a barrier to European integration. In line with this, the German Constitutional Court has subjected EU measures to relatively frequent constitutional scrutiny, but only once has it declared an EU act to be in breach, and has since reverted to its previous position, meaning that while the German Constitutional Court is very keen to assess EU norms, it is much more reticent to engage in open conflict with them. The professor then noted that although German academic circles seem to agree that there are limits to European integration, most of their members are not inclined towards a more activist approach of the Constitutional Court towards the EU. He concluded his presentation by pointing out that the concept of constitutional identity is not archetypical in German constitutional law and that the Constitutional Court's activity is rather aimed at monitoring and influencing the development of EU law through the signals it sends to the CJEU. Translated with DeepL.com (free version)
The panel continued with a presentation by Michal Petr from Palacký University in Olomouc on the relationship between the Czech Constitutional Court and EU law. He made it clear that although the issue of constitutional identity is not much discussed in the country, the Constitutional Court has developed an extensive practice in defending the so-called "material core" of the Constitution, indicating its protection also in relation to EU activities (e.g. ÚS 50/04). In another decision, the Constitutional Court went even further and held that the CJEU had acted ultra vires in the case in question, by misapplying European law where it should not have done so (e.g. ÚS 5/12). Nevertheless, Professor Petr noted that, in general, the practice of the Czech Constitutional Court is very pro-European, as can be seen from its other decisions, such as the European Arrest Warrant (e.g. ÚS 66/04) or the Lisbon (e.g. ÚS 29/09 and ÚS 19/08) cases.
The first panel discussion of the conference ended with a lecture by Petar Bačić, professor at the University of Split, who spoke about Croatian constitutional identity in a European context. Professor Bačić began his presentation with a general overview of the Croatian Constitution and then went into more detail on the 2010 amendments that allowed the country to join the EU. He also presented the relevant articles of the Constitution in the context of EU membership. In the second part of his lecture, Professor Bačić presented the relevant case law of the Croatian Constitutional Court. Here, he mentioned the decision U-VIIR-1158/2015, in which the Constitutional Court, inter alia, established the primacy of the Croatian Constitution over EU law. He also mentioned the possible restriction of EU activities stemming from the Constitutional Court's opinion that the annulment or amendment of structural constitutional principles would endanger the survival of the Croatian state in its current form.
The second panel will be opened by Lilla Berkes and Zs. András Varela and András Lega, who presented an overview of the Hungarian Constitutional Court's approach to the EU's activities. In the first part of the lecture, Professor Berkes presented the activities of the Constitutional Court during the period of the 1949 Constitution in force. She mentioned the 2002 Integration Clause, which introduced the concept of shared competence. She stressed, however, that no provision on EU law was included in the Constitution, leaving the question of the primacy of EU law unresolved at the constitutional level. Professor Berkes also explained that the Constitutional Court avoided answering questions on primacy and the use of the word "sovereignty" during this period.
Varga Zs. Professor András Varga continued his presentation with the period after the adoption of the new Hungarian Constitution in 2011. He mentioned two important Constitutional Court decisions relevant to the topic under discussion. The first one was the AB decision 22/2016 (XII. 5.), in which the Constitutional Court assumed the right to examine whether the exercise of joint competences with the EU violates human dignity and other fundamental rights, Hungary's sovereignty and identity based on its historical constitution. The second case referred to is Decision 32/2021 (20.12.21) AB, in which the Constitutional Court held that the elements of population, language, history and cultural traditions listed in the documents defining the struggle to consolidate sovereignty - as acquis of our historical constitution - are part of the constitutional identity of the country, and that it is the task of the Constitutional Court to set limits to the exercise of shared competences on the basis of these and to ensure the exercise of Hungary's right to dispose. However, this can only be done in exceptional cases where the exercise of the shared competences is incomplete, i.e. where the institutions of the European Union manifestly do not exercise the powers conferred on them, or where the exercise of the shared competences is superficial in such a way that it manifestly does not ensure the effective implementation of EU law.
The next speaker was Professor Aleksander Stępkowski from the University of Warsaw, who spoke about constitutional identity as interpreted by the Polish Constitutional Court and its relation to the limits of the transfer of sovereignty. In this context, he referred to the Polish Constitutional Court's judgment K 32/09, in which the court ruled that accession to the EU constitutes a limitation, but not a surrender, of national sovereignty and that the concept of constitutional identity makes certain competences of the Polish state (for example, in the areas of statehood, democracy or the rule of law) non-transferable. The second judgment mentioned was the recent decision in Case K3/21, which declared certain provisions of the Treaty incompatible with the Polish Constitution.
The second panel of the conference continued with a presentation by Professor Marieta Safta from Alexandru Ioan Cuza University in Iași, who presented her research with Professor Tudorel Toader. In her presentation she spoke about the theoretical and practical aspects of Romanian constitutional identity. After presenting the general issues of the incorporation of EU law into the Romanian legal system, he mentioned that, according to the Romanian Constitutional Court, the acquis communautaire is in an intermediate position between the Constitution and other laws (Decision 148/2003). Regarding the issue of constitutional identity and the transfer of powers to the EU, Professor Safta also presented several decisions of the Romanian Constitutional Court, in which the Romanian Constitutional Court has held that there is a constitutional limit to the fulfilment of the obligations arising from accession, which is expressed in what the court has described as "national constitutional identity" (Case No. 887/2015, p. Decision No 887/2015, Decision No 682/2018) and that Member States retain the powers that are inherent to the preservation of their constitutional identity (Decision No 683/2012).
The next participant of the conference was Giacinto della Cananea from Bocconi University in Milan, who presented the relationship between Italian internal law and the European Union legal order. He mentioned that the Italian Constitutional Court was initially reluctant to accept the principle of primacy of EU law without reservations, as observed for example in the 1973 Frontini case, where it ruled that the primacy of EC law must be subject to limits that would allow the principles of the national constitutional order to be preserved. However, as the Professor has explained, this position has been gradually revised over the following decades, and finally a strong legal basis for the primacy of European law has emerged, although the Constitutional Court still seems determined to defend the principles of the national legal order. He also mentioned a number of preliminary references which have led to the view that the Italian constitutional tradition should be seen in line with the common (European) tradition. He stressed that the fact that Italy is a founding member of the European Union is fundamental to the definition of Italian national identity. In the concluding part of his presentation, Professor della Cananea expressed the view that, according to the majority of Italian constitutional lawyers, the interpretation of Italian and European identity must be consistent with each other, which would ensure that the possibility of real conflicts in this respect remains low.
The last speaker of the conference was Alena Krunková from Pavol Jozef Šafárik University in Kazan. She mentioned that there is no decision of the Slovak Constitutional Court that is as relevant to the conference topic as the aforementioned decisions of the German, Czech or Polish Constitutional Courts. Instead, he focused on the relevant events in the constitutional development of the Slovak Republic and briefly presented the relevant provisions of the Slovak Constitution. Later, Professor Krunková turned to the process of the country's accession to the European Union, describing the amendments adopted to make membership possible and giving a brief overview of the activities carried out in the framework of institutional cooperation between the Slovak State and the European Union bodies.
After Professor Krunková's presentation, Professor Szilágyi opened the floor to questions from the audience. After a short but lively discussion with almost all the speakers, Professor Zs. Varga thanked the participants and the audience for their presence and closed the conference.
