The EU’s top court gets to test whether its word is still law this week in the wake of a landmark German court ruling that shook the bloc’s legal order.
The Court of Justice of the EU is ruling Thursday on the legality of Hungarian asylum measures — and the response from Budapest will show whether Prime Minister Viktor Orbán will stick to his earlier policy of not openly challenging the CJEU.
Until now, Orbán has been cautious in breaking with Brussels on court matters, something that the nationalist government in Warsaw has shown less compunction about in its own fights with the EU.
Those differences were shown in the immediate aftermath of last week’s German Constitutional Court ruling on a European Central Bank bond-buying program that is seen as posing a challenge to the supremacy of EU over national law.
In Warsaw, Sebastian Kaleta, Poland’s deputy justice minister, held a press conference immediately after the German decision was published, saying it “has a colossal importance for the dispute between Poland and the European Commission about judiciary reform.”
“The German Constitutional Court’s decision strengthens the position that from this perspective the European Union is not the equivalent of the European United States” — Judit Varga, Hungarian justice minister
“This judgment shows that in the dispute over the ability to reform the Polish judiciary, the Polish government is in the right. We’ll defend this position, and now we have another argument in hand,” he added.
Hungary — Poland’s firm ally in resisting accusations from Brussels that the two countries are backsliding on their adherence to rule of law — was slightly more circumspect.
Several days after the German ruling, Hungarian Justice Minister Judit Varga told the Magyar Nemzet newspaper: “This ruling will definitely be a milestone, but there are some phenomena which make one be cautious. The fact that they overruled the Court of Justice of the European Union is extremely important.”
Asked where she stands in the debate over who gets the final word when European and national powers clash, the minister said: “According to our position of a union based on strong nation-states, this is obviously the sovereign member state, where the final custodian of the law is the constitutional court.”
“The German Constitutional Court’s decision strengthens the position that from this perspective the European Union is not the equivalent of the European United States,” Varga added.
That stance will be in question following Thursday’s CJEU ruling. The EU court is set to rule on the country’s controversial transit zones — areas where asylum seekers are held — as well as whether an asylum application could be disregarded if the applicant came to Hungary via a third country like Serbia, where they are not exposed to persecution or risk of serious harm.
That’s a direct challenge to Orbán, who has built part of his support on his pledge to defend the Hungarian nation from foreigners.
Fight or flee
Despite growing Euroskeptic rhetoric and EU rule-of-law probes, the Polish and Hungarian governments have both made sure to comply with Court of Justice rulings, at least on paper.
“Poland is complying with all judgements of the [CJEU],” Polish Minister for European Affairs Konrad Szymański told POLITICO, while adding that the German ruling “presents an important contribution.”
But Warsaw is skirting closer to the edge than Budapest.
The core of the dispute over Poland’s judicial reforms is whether they’ve placed the court system under the control of the ruling Law and Justice party, something the Commission says is happening.
The Court of Justice last month issued a temporary order freezing the functioning of the disciplinary arm of the Polish Supreme Court until the judges in Luxembourg give a final verdict on its legality.
Last Friday, Poland said it had fulfilled the court’s orders and suspended the chamber. But at the same time the issue was referred to the Polish Constitutional Tribunal — another top court widely seen to be under the ruling party’s control — asking if imposing interim measures on the judiciary is in line with the Polish constitution.
Hungary has long avoided conflict with the CJEU as part of a broader political strategy.
“The Hungarian government was from the very beginning very cautious with [the CJEU]” — Gábor Halmai, professor at the European University Institute
Openly breaking with the court could further fray relations between Orbán’s ruling Fidesz party and the European People’s Party, which has suspended but not expelled the Hungarian grouping.
“The Hungarian government was from the very beginning very cautious with [the CJEU],” said Gábor Halmai, a professor of comparative constitutional law at the European University Institute.
Instead, the Hungarian leader has adopted a strategy of adhering to rulings while still achieving his original goals.
Halmai pointed to a legal change in 2011, when the Orbán government lowered the retirement age of judges — effectively firing nearly 300 of them. When the Court of Justice ruled against Hungary, the retirement ruled were adjusted, but the judges were never reinstated to their previous senior roles.
Halmai said that even if the CJEU rules against Hungary’s asylum policy, “I do not really envisage any kind of very militant type of confrontation as the Polish government did.”
The likeliest response by the Orbán government would be that “they will change certain minor things, and then they will get away with that, I’m afraid. This is always the tactic.”
But there are voices in Budapest warning of a possible Polish-style confrontation. One Fidesz member, who spoke on condition of anonymity, suggested: “The next actor will be the Hungarian Constitutional Court,” which could echo the German court in finding that national law has primacy over the EU’s top court.
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