This blogpost is based on our chapter forthcoming in M. Bonelli, M. Eliantonio, and G. Gentile, Article 47 of the EU Charter and effective judicial protection (Volume II: The National Courts’ Perspectives).

The fundamental rights included in Article 47 of the EU Charter still seem to be struggling to gain effective recognition in the Hungarian judiciary at large. We argue that in the future the application of Article 47 can be expected to accelerate as the provision may represent the final guarantee of judicial protection under law in contemporary Hungary.

In Hungary, the application of Article 47 of the EU Charter is expected to gain further importance as it may represent the final guarantee of judicial protection under law. The majority of the relevant Hungarian case law falls within the domain of administrative law. This can be explained by the fact that EU law’s coverage is wider in administrative law than in criminal law, and in this area Hungarian courts, especially individual administrative judges, generally seem more prepared to apply EU legal provisions than in other judicial divisions. Hungarian courts, which in general have been comparatively active users of the preliminary ruling procedure, submitted references regarding the interpretation of Article 47 in legal areas where they had been heavily invested in the application of substantive EU law (e.g., VAT fraud), and/or were confronted with evident incompatibilities between domestic legislation and legal practice and the applicable EU legal requirements (e.g., asylum law). The Constitutional Court has never relied on Article 47. Instead, it applies its Hungarian counterpart, Article XXVIII of the Fundamental Law, which regulates essentially identical fundamental rights.

The law on VAT is one of the domains where Hungarian administrative courts have been regularly applying EU law and have made a considerable number of preliminary references to the CJEU. In one of them, in the WebMindLicenses judgment, the CJEU held that when criminal and tax administration procedures are initiated in parallel for suspected VAT fraud by the same taxpayer, and the evidence collected in the first procedure using clandestine means is used in the administrative procedure, Article 47 demands that the court acting in judicial review is able to verify whether the evidence used to support the administrative decision challenged ‘has been obtained and used in breach of the rights’ provided in the EUCFR. The court  should be able to examine whether the evidence was obtained lawfully, or it should be able to rely on the review carried out by the criminal court in an inter partes procedure that this was the case. The Kúria (Supreme Court) implemented the judgment CJEU and made it clear that – in the context of the applicable Hungarian rules – the review demanded under Article 47 can only be exercised by the court seized in the criminal case. The court acting in judicial review against the tax authority’s decision – lacking the necessary competences under national law – is unable to examine the lawfulness of the evidence.

In asylum cases, the CJEU’s relevant judgments intervened rather radically in Hungarian law in order to ensure that judicial review is available for the protection of individuals. In Torubarov, the preliminary reference concerned the rule in Hungarian asylum legislation which excluded that the national court acting in judicial review against the asylum decision exercises reformatory powers. In the original case, the national asylum authority repeatedly ignored the review court’s judgments annulling its decision and its judicial instructions for the repeated administrative procedure. The CJEU, sitting in Grand Chamber, established that Article 47 demands that national authorities implement the decisions of national courts which give a full assessment of the original asylum claim, and, when the provisions of national law do not allow that possibility, courts must be able to ensure that their decisions are followed by the national authorities. In this particular case, the CJEU held that the Hungarian court must establish its jurisdiction to modify the asylum decision and substitute the national authority’s assessment with its own decision. Since the judgment from the CJEU, Hungarian courts have been following the practice of modifying the asylum decision when the instructions given in the judgment of the review court for the repeated administrative procedure were not followed by the national authority. However, the Hungarian Parliament has not yet deemed it necessary to grant reformatory powers to judges in asylum cases to avoid lengthy repeated proceedings.

In the preliminary reference decided in 2022 in GM v Országos Idegenrendészeti Főigazgatóság, the Hungarian first instance court questioned the compatibility with Article 47 of the rule in Hungarian asylum law which enabled the rejection or the withdrawal of international protection on national security grounds. The question put to the CJEU was whether, in case the asylum decision was based on classified information relating to national security, the person concerned or his/her representative must be provided access ‘to at least the essence of the confidential or classified information or data’ used. In the original case, the applicant argued that without access to the information or data used to make the withdrawal decision, he was unable to challenge that decision in law and exercise his rights of defence.

In its judgment, the CJEU pointed out that although the Member States are required to observe the rights of defence and the right of access to the file in asylum procedures, they enjoy autonomy in developing their own legal guarantees and they can balance this obligation with their interest in safeguarding national security. In particular, they can impose necessary restrictions on the rights of defence; however, they must not deprive that right of all effectiveness and thus must not exclude the person concerned or his/her representative from gaining ‘effective knowledge’ of the decisive elements of the case file. The CJEU found the Hungarian rules incompatible with EU law with particular regard to the provision which explicitly excluded the use of classified information in administrative and judicial procedures even when the individual was granted access to them. After the judgment, a further preliminary reference was put to the CJEU concerning similar national security exceptions in immigration procedures concerning the withdrawal of a national residence permit of a family member of Union citizens.

Regarding matters of judicial independence and the right of national courts to turn to the CJEU with preliminary references, the judgment Criminal proceedings against IS was a landmark for the Hungarian judiciary. The referring Hungarian court turned to the CJEU to defend with the help of Article 47 the independence and the integrity of the Hungarian judges. In its larger part, the reference reads as a desperate plea for attention from the CJEU and the EU towards the worries of judges in contemporary Hungary. However, many of these worries did not have direct relevance for the original case before the referring court. The case concerned the right to a suitably qualified interpreter for the suspect in criminal proceedings. One set of questions sent to the CJEU dealt with this issue. The other questions raised general criticisms of the administration of the judiciary in Hungary, such as irregularities in the appointment practice of the president of the National Office of the Judiciary for senior judicial administration positions, or the circumstance that judges in Hungary receive inadequate remuneration for their work, which was seen as a factor capable of undermining judicial independence and the right to a fair trial.

The reference gained notoriety when the referring order was challenged before the Kúria by the Prosecutor General in a special procedure (i.e., an appeal in the interest of the law). The Prosecutor General argued in particular that the reference was unlawful under Hungarian law as it did not satisfy the relevant conditions under Article 267 TFEU as laid down in the case law of the CJEU. In its judgment, the Kúria ruled that the reference and the parallel order of the referring court suspending the procedure were unlawful as a matter of Hungarian law. It held that although Hungarian judges have an autonomous right to refer a case to the CJEU, their references must be compatible with Article 267 TFEU, and the lawfulness of the referring order can be subject to review before the national courts. This review may cover in particular whether the questions referred to the CJEU are necessary for deciding a pending case. Regarding the questions about judicial independence and integrity, the Kúria found that they formulated a general criticism of the ‘constitutional arrangements’ applicable to the judiciary. Therefore, their examination by the CJEU was unnecessary in the context of the original case. It concluded that the preliminary ruling procedure cannot serve as an avenue for expressing real or assumed individual grievances by national judges, or for vindicating organisational interests within the national judiciary. The decision of the Kúria was of a declaratory nature. It did not set aside the referring court’s order.

Following the Kúria’s judgment, the president of the Budapest-Capital Regional Court initiated disciplinary proceedings against the referring judge on account of the unlawful nature of the referring order. The disciplinary procedure was eventually discontinued. The referring judge maintained the reference and addressed further questions to the CJEU. One group of these questions concerned – rather fittingly – the compatibility with Article 267 TFEU of interferences by higher courts (the court of last instance) declaring a preliminary reference by the lower court unlawful. The judge asked whether the principle of judicial independence – as set out in Article 19(1) TEU and Article 47 EUCFR – precludes that disciplinary proceedings are brought against a judge for referring a case to CJEU. The CJEU, sitting in Grand Chamber, formulated a clear position on the main questions that it had found admissible. It confirmed that a higher court of law proceeding against a referring order cannot declare that order unlawful on account of its perceived inadmissibility under Article 267 TFEU. Thus, the referring national court can ignore that decision of the higher court. It also declared that a national judge cannot be brought under disciplinary proceedings for making a reference to the CJEU. As well known, recently the question of judicial independence and especially the freedom of turning to the CJEU for a preliminary ruling became a condition of the Council’s approval of Hungary’s recovery and resilience plan.

The judiciary represents possibly the final institutionalised means of protection of the individual – both nationals and non-nationals – against the vast centralised block of power which now characterises government in Hungary. We hope that Hungarian judges will continue to recognise and apply Article 47, and when necessary ask for the interpretative help of the CJEU, to fulfil their role in legal protection.

Posted by Marton Varju (Research Professor, Centre for Social Sciences- Mónika Papp (Research Fellow, Centre for Social Sciences and Senior Lecturer, Eötvös Lóránd University, Budapest)

Suggested citation: M. Varju and M. Papp, ‘The Application of Article 47 of the EU Charter by Hungarian Courts’ REALaw.blog available at https://realaw.blog/?p=2538