On October 2nd 2016, the Hungarian people were asked to vote on whether they would like to accept what has come to be known as the EU quota system for resettling refugees from other EU countries to Hungary. The question, already indicating the “correct” answer, drove most of the opposition as well as a large number of various groups and NGOs to call for a boycott of the referendum (see here and here for the Migszol position on it). The idea behind the boycott was to invalidate the outcome of the referendum. For this, more than half of the Hungarian electorate had to abstain from participating in the vote. In the end, 60% of the Hungarians either chose to boycott, invalidate or abstain from the vote.
The call for boycotting the referendum seemed to have succeeded. The opposition declared the blasting defeat of Viktor Orban. For the first time, the Fidesz government failed with a referendum that they initiated. Yet, Orban shed a different light on the results of the vote. He simply ignored the question of the validity of the vote and claimed that the vast majority that had voted had decided against the EU quotas. He claimed that the 98 percent of the people that had cast a ‘no’ vote, supplied him with the clear mandate to take legal steps to protect the country. He dug out a proposal that was previously made by Jobbik and announced the government’s intention to change the constitution — yet again.
The idea behind the constitutional amendments seems clear. Orban wants to block the EU quota system from resettling refugees to Hungary by amending the constitution to provide the Hungarian authorities with the last say on who is admitted to settle in Hungary and who not. The main proposed change to the constitution reads as following (see here for all the amendments proposed):
„Foreign population may not be relocated to Hungary. Any Foreign citizen – excluding citizens of member countries of the European Economic Area – may settle in Hungary according to the procedures and rules set out by the relevant law formulated by the Parliament, based on their individual application considered and evaluated by Hungarian authorities. […]” (This sentence will replace Paragraphs 1-3 of Article XIV)
As explained above, such change in the constitution would make the Hungarian authorities have the last say in who can reside in Hungary and who not. This would directly challenge EU laws and take out of the EU’s hand the competency to resettle refugees to Hungary. The most important question now is a simple one: Can Orban get through with this? Can he successfully challenge EU law and if so, how?
Normally, EU law is superior to national law. If they are in conflict, EU law ought to override national law. In any other case, a law passed by the Hungarian parliament that goes against EU law would thus not be legally binding. Yet, there is one exception and Orban is attempting to make use of it through his constitutional amendments. This exception is provided by the so called “national identity clause” of Article 4 (2) of the Treaty of the European Union. The article states that an EU law can be challenged once it affects the “national” or “constitutional identity” of a country. If it does, the country can abstain from delivering upon obligations that it would normally have according to that EU law. It so happens that Orban aims to include two passages as part of his proposed constitutional amendments, which directly mention the constitutional identity of Hungary. The exact wording of the proposed amendments read:
„We hold that protecting our constitutional identity rooted in our historical constitution is a basic obligation of the state” (Following a section of the “National Avowal”) and
„Protecting the constitutional identity of Hungary is an obligation of all bodies of state.” (added as Paragraph 4 to Article R)
It is clear that he intends to make use of the loophole provided by the “national identity clause”. What is not clear, however, is whether he will have success with this. If Orban goes down this road, he will face an infringement procedure by the EU, which can take years and during which he can simply deny to comply with the obligations that the EU poses on him. Ultimately, the case could be taken to the EU Court of Justice. Yet, the court has so far often been cautious to accept such cases, since it wants to circumvent cases in which it is not clear whether the last word in the matter belongs to a national constitutional court or to the European Court of Justice. This is such a case. In the last instance, it could come to a conflict of competency between Hungary’s constitutional court and the European Court of Justice, both claiming that they have the last say. This is not without precedence; the German constitutional court, for example, has already used such clauses to affirm its sovereignty over EU ruling.
Orban thus attempts to use a clause in EU law that might enable him to push through his politics of xenophobia and stern national sovereignty even after having received a clear, negative sign from the Hungarian populace, directly rejecting his ideas on migration and democracy.
Before such a scenario could become a reality, however, the constitutional amendments have to be accepted by a two thirds majority in the Hungarian parliament. We call upon all those able to vote against Orban’s proposed constitutional amendments in the parliament to abide by democratic principles and listen to the voice of those 60% of the Hungarian people who have set a clear sign against the plans of the government. We call upon Hungary’s civil society not to accept in silence what the government serves them, but to cry out for democracy and fairness — for the rights of refugees and the Hungarian people alike.
„Foreign population may not be relocated to Hungary. Any Foreign citizen – excluding citizens of member countries of the European Economic Area – may settle in Hungary according to the procedures and rules set out by the relevant law formulated by the Parliament, based on their individual application considered and evaluated by Hungarian authorities. […]” (This sentence will replace Paragraphs 1-3 of Article XIV)
As explained above, such change in the constitution would make the Hungarian authorities have the last say in who can reside in Hungary and who not. This would directly challenge EU laws and take out of the EU’s hand the competency to resettle refugees to Hungary. The most important question now is a simple one: Can Orban get through with this? Can he successfully challenge EU law and if so, how?
Normally, EU law is superior to national law. If they are in conflict, EU law ought to override national law. In any other case, a law passed by the Hungarian parliament that goes against EU law would thus not be legally binding. Yet, there is one exception and Orban is attempting to make use of it through his constitutional amendments. This exception is provided by the so called “national identity clause” of Article 4 (2) of the Treaty of the European Union. The article states that an EU law can be challenged once it affects the “national” or “constitutional identity” of a country. If it does, the country can abstain from delivering upon obligations that it would normally have according to that EU law. It so happens that Orban aims to include two passages as part of his proposed constitutional amendments, which directly mention the constitutional identity of Hungary. The exact wording of the proposed amendments read:
„We hold that protecting our constitutional identity rooted in our historical constitution is a basic obligation of the state” (Following a section of the “National Avowal”) and
„Protecting the constitutional identity of Hungary is an obligation of all bodies of state.” (added as Paragraph 4 to Article R)
It is clear that he intends to make use of the loophole provided by the “national identity clause”. What is not clear, however, is whether he will have success with this. If Orban goes down this road, he will face an infringement procedure by the EU, which can take years and during which he can simply deny to comply with the obligations that the EU poses on him. Ultimately, the case could be taken to the EU Court of Justice. Yet, the court has so far often been cautious to accept such cases, since it wants to circumvent cases in which it is not clear whether the last word in the matter belongs to a national constitutional court or to the European Court of Justice. This is such a case. In the last instance, it could come to a conflict of competency between Hungary’s constitutional court and the European Court of Justice, both claiming that they have the last say. This is not without precedence; the German constitutional court, for example, has already used such clauses to affirm its sovereignty over EU ruling.
Orban thus attempts to use a clause in EU law that might enable him to push through his politics of xenophobia and stern national sovereignty even after having received a clear, negative sign from the Hungarian populace, directly rejecting his ideas on migration and democracy.
Before such a scenario could become a reality, however, the constitutional amendments have to be accepted by a two thirds majority in the Hungarian parliament. We call upon all those able to vote against Orban’s proposed constitutional amendments in the parliament to abide by democratic principles and listen to the voice of those 60% of the Hungarian people who have set a clear sign against the plans of the government. We call upon Hungary’s civil society not to accept in silence what the government serves them, but to cry out for democracy and fairness — for the rights of refugees and the Hungarian people alike.
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