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The Hungarian Constitutional Court and the Central European University Case: Justice Delayed is Justice Denied Decision of the Hungarian Constitutional Court of 6 July 2021 and the Judgment of the ECJ of 6 October 2020, Case C-66/18

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Rok publikování 2021
Druh Článek v odborném periodiku
Časopis / Zdroj European constitutional law review
Fakulta / Pracoviště MU

Právnická fakulta

www Open access časopisu
Klíčová slova Hungary; Constitutional Court; CEU; illiberalism; judiciary
Přiložené soubory
Popis The well-known case of Central European University started in April 2017, when the Hungarian Government pushed through in an extraordinary legislative process a tailor-made law to force the CEU out of Hungary. The amendments to the Act on Higher Education were challenged before the Constitutional Court, and later the European Commission started an infringement procedure against Hungary and turned to the CJEU. One and half year later, in June 2018 the Hungarian Constitutional Court suspended its procedure, and recalled the metaphor of a necessary European constitutional dialogue. It concluded that regarding the fundamental rights’ context and the obligation of cooperation within the European Union, it is necessary to wait for the closing of the procedures pending at the European Court of Justice. According to the orders of the Constitutional Court, the fundamental rights indicated in the motions are closely related to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, therefore until the end of the procedures started in the same subject by the European Commission at the Court of Justice of the European Union, the Constitutional Court shall suspend its procedures launched for examining the conflict with the Fundamental Law and the annulment of legal norms attacked. In October 2020 the CJEU issued its judgment, and declared the violation of the GATS (General Agreement on Trade in Services of the WTO), Article 49(1) TEU, The Services Directive 2006/123, and two further provisions of the Charter, i.e. Article 14(3) on the freedom to found educational establishments and Article 16 on the freedom to conduct a business. After the CJEU judgment, the Constitutional Court omitted to continue its procedures for months, as if it were waiting for something. In May 2021, the Government tabled a bill to amend the Act on Higher Education to enforce the judgment of the CJEU, the 2017 amendment was partly repealed, partly modified. When the bill was adopted, the Constitutional Court noticed that the regulation has substantively changed and the applicants did not submit any supplemental petition thus the Constitutional Court terminated its proceedings, because the subject matter became obsolete and there is no need to adjudicate it. It is still instructive to analyse the rulings because the case illustrates well two peculiarities of the constitutional review carried out by a captured court in a hybrid regime. On the one hand the trap of the so-called judicial dialogue: it leads to a parallel play, where courts play alongside each other, but not with each other. This parallel game is exactly what the Hungarian Constitutional Court is playing: beyond making references to the necessary mutual judicial dialogue, it justifies the restrictive and abusive governmental policies and legislation in the field of asylum law, or silently assists (by non-decisions) the devastation of the rule of law guarantees. On the other hand, the reasoning of the Constitutional Court outlines a cynical and instrumental way of interpretation that is characteristic to anti-constitutionalism of the authoritarian rule by law regime.
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