In its ‘refugee quota decision’ of 2016 the Hungarian Constitutional Court (HCC) ‘invented’
its competences of ultra vires, sovereignty and constitutional identity controls.
The sword of constitutional identity (CI) has been forged against foreign – first
of all – EU law. In the development of the new concept the interplay between the Government,
the Government-dominated parliament and the Constitutional Court loyal to the Government
seems to be evident. The textual analysis of the relevant HCC's decisions proves that
the Hungarian Constitutional identity (HCI) contains legal acts in force – including
the Fundamental Law (constitution) and the Founding treaties of the EU -, legal acts
‘not in force but valid’ and activities related to the fight for independence of the
Hungarian State.As far as the nature of the HCI is concerned, the
article demonstrates the strong relationship with sovereignty control, and the ‘historical
constitution’ and emphasises the HCC's statement according to which the CI is not
created by the constitution, it is merely acknowledges it.Given the
large number of elements identified as part of the HCI, its openness to the inclusion
of further elements, and the questionable nature of the HCI, the author submits that
the concept is inappropriate for any meaningful constitutional review.The
HCC – at least until now – despite being invited to do so, has refused to use the
sword against EU secondary law and the judgment of the European Court of Justice,
and avoided overt constitutional conflict. However, this does not mean that the HCC
is ready to enter into sincere dialogue with the court in Luxembourg.
