Minister of Foreign Affairs János Martonyi’s address to the international conference “The Enforcement of EU Law against Member States” May 21, 2013.

Good morning, Ladies and Gentlemen! Thank you for the invitation, thank you for the opportunity, thanks to the sponsors. I understand that you probably expect this morning a political speech, I’m not sure that I would do that now. I might come to this at the end of my very-very brief introductory remarks. But basically I thought that this is a very good opportunity, this conference, to take a more neutral and a more objective, if you want to put it that way, academic or scientific approach. Of course, it will be used for political purposes anyway. But I think in this situation, especially with respect to the topic of this conference it is extremely important that a fair, reasonable, objective and neutral approach prevails.

Professor Jakab referred to my double capacity that also makes my job a little bit more difficult, because I always have to choose what kind of gown to take. So I shall try to be rather professorial at the beginning and eventually try to draw some conclusions from what I have elaborated.

Now, it’s not a new subject, not a new topic. It has been with us for at least 40 or 45 years, so nothing new about that. But it’s still a topic which has not yet been finally decided. There is no final arbiter. I think it’s good, because this is one of the driving forces of the integration process. Up till now there has been a fundamental balance, despite some lingering conflicts or at least the risk of conflicts, but never this conflict really materialised and I believe that is a good sign, it’s a very good sign also for the future of the European integration process.

Provided the basic criteria of balance are maintained. So this is a subject: the relationship between EU law and the law of the member states. Basically and primarily what I’m talking about is just the constitutional law of member states, so not the law of member states in general. Because in all those areas not belonging to the constitutional law of the member states, the situation is very simple and very clear – okay, at some classifications or qualifications, but  all in all the real topic here is the relationship between EU law and the constitutional law of member states.

This is an extremely timely subject, I would accept, even if it’s not a brand new one, recognised. It’s also intellectually challenging and stimulating, it is politically relevant, we can’t deny it, and at the same time it’s not easy. And as I referred to this before, it is closely related to, in fact inseparable from the general tendencies in the development of European construction. Especially in the last couple of years much has been said about this. Much, even more has been written about that in academic literature. Many people say and propose that after the redrafting and widening of the provision relating to national identity, the relationship between EU law and member states’ constitutional laws will have to be reconceptualised, a more balanced, and a more nuanced approach has to be taken.

So once upon a time there was the theory of the so called absolute primacy of EU law or the supremacy of EU law and that was very much in line with that time conception of the geometric structure of legal rules in general. We all learned it in the law school, which was the pyramid along the lines of Hans Kelsen or many other people. On the top, you had the ius cogens of international law, and underneath in a very strict geometric model or order you had the domestic legal systems. But then, after a while European law was kind of inserted in that pyramid, but still that pyramid remained based upon a strict vertical subordination. A kind of, as I said, geometric structure, a kind of pyramid.

It’s clear that now we have to take a more nuanced approach. Not only because in fact this absolute primacy or supremacy has never been fully recognised by everyone. I’m not referring only to the case law of so called domestic constitutional courts, but also to article 23 para 1 of the German constitution which was quite clear when it said Germany’s participation in the European community shall take place in accordance with its core constitutional principles. So it’s not just Ewigkeitsklausel, it’s not just article 79, it’s also 23, which says quite clearly, that everything must be in line with the core constitutional principles of Germany.

And then of course came the case law, first in Italy, then in Germany, France, in many other countries. And what we have to say now after Lisbon is that a new relationship is being now established here. Many people now underline that instead of the absolute primacy, a kind of relative primacy has to be adopted. And the basis for this approach is first what we just discussed very briefly namely that the competencies of the European Union are conferred competencies. Whatever is not conferred belongs to the member states that is the source of le pouvoir constituant, belongs to the member states. But more importantly of course you have article 4 paragraph 2, which says on one hand that the European Union shall respect the equality of member states, it’s very important, but the text goes on and says that it also respects the national identity of the member states in here and in their fundamental, political and constitutional structures.

So as I said this reference to the national identity has now been explained by this reference to the fundamental political and constitutional structures, and that means – and that is perhaps also a semantic issue – here we are not speaking about nation as a cultural concept, we are not speaking about history, about language, or cultural identity – although we may speak about that as well. But we do speak about fundamental political and constitutional structures, as it is clearly said in the language of article 4 para 2.

At the same time, and we should never forget, the text goes on with para 3 of article 4, which refers to the loyal compliance with the EU principles and rules. And that’s why I believe it’s true when many people underline that the two things have to be interpreted together. On the one hand, there is national identity to be respected. On the other hand there is an obligation upon member states to be loyal to the union’s basic values, principles, rules. And we can only interpret article 4 correctly if we find, as I said and as I say again, the balance between the two approaches. But what is national identity? Of course that’s another question. I fully agree with those who underline that after all the constitutional identity can be and must be derived from the concept of national identity. So the national identity can be understood as permitting domestic constitutional courts to invoke constitutional identity.

The result is complex. The result is that instead of firm advocating to opposing approaches on one hand and on the other hand there is no new situation. There is a fundamental need for cooperation, a need for interaction and a need for mutual respect. Without this, it wouldn’t or it will not work. So that’s why the Germans against the Germans against the Germans of course they invented this concept, the Verfassungsverbund, i.e. that there is a binding link between the participants who have to take account of what the other is saying, who have to watch each other and follow each other and who have to respect each other. And first and foremost who have to cooperate with each other. And for that they definitely need a substantial amount of reasonability and self-restraint.

Now of course I have no time and it would be a long exercise to go through the case law, either of the domestic constitutional courts or indeed of the European Court of Justice, you know it in any case much better than I do, so I would refrain from going into all these details. One case perhaps can be mentioned: it’s very recent, it has also a Hungarian dimension. This is the famous Sayn-Wittgenstein case, where the European Court of Justice did to some extent at least recognise that the constitutional principle as enshrined in the constitution of Austria from 1920 had to be recognised or indeed to take into account.

So gone is the strict and simple hierarchy. The situation is more diffuse. It’s not limited, by the way, to the relationship between European law and domestic constitutional laws. If you take the rules and principles on the global level, it’s not as simple and not as strict as it used to be a couple of decades ago. It doesn’t make the work and the job of the practicing lawyers or indeed university professors easier- not at all. But practicing lawyers say that it might be even beneficial, because we have more and more very complex legal disputes. Because of the multi-level and multi-layers system of law which is a pluralistic concept and which of course makes things much more complex and difficult.

But coming back to the European situation. Yes, it is true that we now have a new pluralistic system. Some people call it the composite constitutionalism or composite system of constitutional adjudication. That’s all true, but the real question is then it means in practice. Of course, the content of national identity and the content of constitutional identity in itself can be discussed at length - I’m sure that you will do it anyway during the course of the day. But what we have to see is that, if we for instance approach the core of constitutional identity, what we have realise, is that there is an immense diversity among member states. Certainly, much more diversity than, for instance, in the United States of America. You can’t even compare them in a way. Just to list some of the differences.

Some of the member states are monarchies, some of the member states are republics. Monarchs of course are not elected. But even presidents in some of the member states are not elected directly by the people. In some member states they are elected indirectly by the parliament. Some countries even change it, like for instance the Czech Republic, the latest election of the president took place by a direct election. Also member states have pure parliamentarian systems and at least one of them does have a semi-presidential system, but even the competencies and the prerogatives, the responsibilities of presidents directly or indirectly elected are fairly diverse.

Now you have strong parliaments in some countries, you have weaker parliaments in some member states. You have democracies based, as political scientists say, upon competition – some function more on the basis of consensus. Some are unitary, as you know very well, some are of course federal systems.

More importantly, member states may have strong or, indeed, weak systems of constitutional adjudications. That means that the powers and prerogatives of constitutional courts are also very much different. In some countries there is not even a constitutional court, in some member states there is a very strong constitutional court, like in Germany for instance. And even the scope of fundamental rights can be quite different, maybe not in practice, but at least on the constitutional level, that also comes from the fact that constitutions were adopted at different times. Of course, the more recent constitutions, like for instance the Hungarian one, the Hungarian Fundamental Law has a very extensive list of fundamental rights, because basically the Charter of Fundamental Rights was followed, copied basically for 99 per cent.

While of course constitutions which were adopted long time ago, they have a more restricted list. But in practice it doesn’t matter that much, because after all the fundamental rights are also enshrined in article 2 of the Treaty. If I mention article 2 of course it’s quite clear that article 2 is prevalent, so article 2 must be complied with, because that’s the core of the Union’s legal system. It seems to be that there has been no conflict between basic values under article 2 and principles and the domestic constitutional laws. But the theoretical possibility, perhaps even the practical possibility cannot be excluded for the future. Now, as I said and I would conclude this part, there is no final arbiter; up till now, there has been no outright conflict, none of the constitutions of the member states has been challenged or objected to by the European Court of Justice. While of course the European Court of Justice always underlined that the Union law has primacy in any case and under any circumstances. But none of the constitutional courts, none of the domestic constitutional courts rejected or challenged a concrete decision of the European Court of Justice. So this kind of mutual self-restraint is functioning already now, so this kind of mutual respect for each other is no doubt there.

But this can be maintained only if – as I said – the balance is fully respected between, as it is said, the primacy of Union law and the constitutional identity of member states. The balance is indeed a general need, a general requirement. That’s why I said at the beginning that this topic, this issue that we are dealing with, that you are dealing with today is very closely related to the general tendencies of the integration if you want to put it that way, to the future of Europe. Because this old dispute about federal Europe and the Europe of nation states, I believe and I said so already ten years ago, is no longer really valid. Of course, we always stick to theoretical notions and theoretical concepts: this is the human mind. In fact even more so this is the European mind. It’s European culture that we always search for concepts, for notions, for theories, because that simplifies our thinking - but it does not replace it. Plus, it does not always meet the realities. And we have realities in Europe and we have to respect all those realities.

That’s why I believe what is really important here is the balance again and again, the balance between the integration, basic principles, objectives, policies and the member states’ identities, including constitutional identity. But there should be also a balance among or between institutions. The Treaty established that balance. It might be criticised - some people might point out that it could have been done better, it could have been done differently; but then that’s how it was done. In European culture it’s always the law that prevails.

So I believe that the balance that was established by the Treaty of Lisbon has to be fully respected. Couple of examples of course. The guardian of the Treaty is the Commission. Why? Because the Treaty did not want to mix up political considerations with basic legal principles and rules. And they thought that it was up to the Commission to decide whether something is legal or not legal. We could never forget that the whole construction is based upon law. If it had not been based upon law, if the European construction were not a structure of rights and obligations, we would not be here now. This country experienced the integration which was not based upon law. Which was called the CMEA or Comecon . The CMEA was based upon political and economic domination, of course of the strongest party. But even when the strongest party exercised some degree of self-restraint, although not very frequently, considerations were always political, never really legal. Because it was based upon political considerations, political objectives and political means.

Now it is the opposite in the European Union. Here everything must be based upon the rule of law, not only in the member states, but also on a European level. Otherwise, we are lost. We will not be lost, don’t worry, I just wanted to underline that this is indeed the cornerstone of the whole architecture. Of course you have an ideal place for political debates and this is European Parliament. That’s very-very good. That’s very correct. That’s the place where political ideologies and values get in conflict. Sometimes you might disagree with the style, with the language, with the rhetoric: this is I think a universal phenomenon. I don’t like the present rhetoric of political life at all, but that’s of course a different question. That is now the way people speak, but all in all I believe that this is the right place for political debates.

And then of course you have the Council, because somebody has to represent the member states. The Council has an extremely important job to co-decide with the European Parliament. I think that the Council has to be careful not to get involved in ideological or party political debates. Because the Council is there to decide, together with the Parliament, but representing on the one hand the member states’ considerations and interests and views; on the other hand, trying to represent, trying to understand the overall European interests and considerations. And there should be a combination of those. Now if you include in that the party political considerations, then of course the Council might lose its original function which is extremely important, we all know that.

So that is the balance between the institutions, which has to be maintained also in the future. It doesn’t exclude that the Treaties might be amended in the future, maybe not tomorrow or the day after tomorrow. It doesn’t exclude that maybe member states will decide to reshape a little bit this balance. They might decide to confer more competencies upon the Union. Some, at least one member state now proposes that a little bit less competence be conferred upon the Union. But these are things of the future.

What I believe and I repeat it over again, for the time being, we have the basic obligation and the basic interest to respect the law as it is enshrined in the Treaties. So, as I said, the rule of law has to be respected and preserved also on a European level. It’s not always easy, because we know very well, that of course political considerations very often take the form of legal arguments. Again, nothing new about that, but we have to be careful. If we mix up law with politics, then of course a difficult situation might emerge.

Whatever new system or whatever new mechanism we try to introduce or try to invent, there are two things, maybe more, but at least two things. One is that we have to respect the existing treaties, unless we decide to change those treaties. But if we do not amend the Treaties, then we have to respect the existing ones. That also means that whatever new political mechanism is created, there must be some fundamental guarantees of the rule of law, such as first and foremost: equal treatment, article 4 par 2, such as basic legal guarantees for the procedure and for the substance. That means legal remedies, that means of course audiatur et altera pars, that means an objective and fair scrutiny of facts and all the circumstances. Lawyers know very well that much depends upon the facts. If somebody says that I’m not interested in the facts, it doesn’t work. A judge can never say: ‘I’m fed up with the facts, please don’t bore me with all the facts you try to refer to’. This doesn’t work. We all know that. So please consider the facts objectively, reasonably, fairly. And of course equal treatment means many things.

I would conclude with this very short anecdote which is not an anecdote, which is reality, happened a couple of days ago. A very good intellectual argument was taking place between two or perhaps more highly educated, important persons, having a discussion about the fourth amendment of the Hungarian Basic Law. Of course, arguments were being exchanged and then one argument was: ‘Look, this thing you have even in a more serious form in this and another member state, so why do you object so heavily against a very similar Hungarian provision?’ Then again: ‘This provision is basically in full compliance with the situation in such and such member states’. I don’t want to identify the member states now, because they will be or are identified anyway. Of course that was the argument which you all know very well. But then came the answer and that is something which makes me think about the situation. Not necessarily as a politician, but also as a European human being and as a lawyer. The argument was that, yes, you are right, I don’t dispute that, this exists, yes, it does exist in that country. It also exists in another country, fine. But those countries are different. Those countries are well established democracies. Yours is a fragile democracy. You are not permitted to do that. Established democracies are permitted to do that, you are not.

So, there are two categories of democracies among the 27 or the 29: one is well established, the other one is fragile. Who decides? Because then please give me the list. List A would contain democracy let’s say nr. 1, list B would contain democracy nr. 2. Is this what we visualised for a European future? Is this equal treatment? Is this rule of law on a European level? I doubt. But I leave you with your doubts and of course you will discuss all the details. Thank you very much!

(Ministry of Foreign Affairs)