Lawful judge. One of the issues that has also not been properly addressed so far180 is whether a decision of a Hungarian court refusing to make a reference to the ECJ would amount – according to Hungarian (constitutional) law – to a breach of a fundamental right (right to a remedy) and, if so, whether anyone, whose rights had therefore been breached, could subsequently bring proceedings before the HCC (right to a lawful judge). In the Hungarian constitutional system, the right to a lawful judge (törvényes bíróhoz való jog) is derived from the requirement of equality before the law (Constitution Art. 70/A(1)181) and it guarantees that a case before the national courts will be dealt with 177 Dec. 142/2010 (VII.14) AB: MK 2010/119. 178 Case 283/81 Srl CILFIT v. Ministero xxxxx Xxxxxx [1982] ECR 3415. 179 See above at Chapter Three, point D.4. 180 2001 Government Paper (at 38) only deals with it to a certain extent: “Whenever a court applies European law, and all possibilities of appeal are over, the interested party could turn to the HCC on the basis of a violation of his constitutional rights. The HCC here could retroactively prohibit the application of that rule in the instant case, but it should abstain from invalidating that rule for the future. But under the Constitution, that is precisely what it ought to do.” 181 As interpreted in Dec. 9/1990 (IV.25) AB: ABH 1990, 46; and Dec. 61/1991 (XI.20) AB: ABH 1992, 280. according to previously prescribed procedural rules (concerning competence of courts, judges, etc.).182 By way of contrast, the right to a remedy is more substantial in character. Constitution Art. 57(5) provides: In the Republic of Hungary everyone shall be entitled to seek a legal remedy, as provided for by statute, against decisions of the courts, the public administration or other authorities, which infringe his rights or justified interests. The right to a remedy may be restricted by a statute passed with the majority of two-thirds of the votes of the Members of Parliament present and in the interest of adjudicating disputes in a reasonable time as well as being proportional thereto. The right to a remedy thus includes not only judicial remedies but also administrative remedies against decisions of the administration or other authorities. But the Hungarian legal system lacks a coherent constitutional model for judicial remedies, so the realisation of the constitutional requirements remains a task for the procedural rules. As these latter are often amende...
Lawful judge a strong possibility On the other hand, in order to complement Xxxxxx, refusal or avoidance to refer by a constitutional court248 could see the extension of the right to a lawful judge throughout the EU Member States and might be interpreted by the ECJ as a general principle of law. This ability to develop general principles of law has been present in the Union system since its inception because it was apparent, at a very early stage, that the ECSC Treaty was not comprehensive enough to deal with the cases that were coming before the ECJ, in as much as specific provisions were not always capable of providing adequate solutions to the problems to be addressed by the Court. Thus the ECJ was faced with a situation where it was compelled either to formulate its own general principles or adopt certain of those general principles used by the Member States.249 The legal basis for the incorporation of general principles into European law is slim, resting precariously on three Articles: the wording of Art. 267 TFEU250 and Art. 19 TEU251 allow the ECJ to go beyond the Treaties to create/develop Union law. Moreover, while Art. 340(2) TFEU252 purports to deal only with liability of the Union, it provides some direction for the Court as to where it should look for these non-codified rules of Union law. The ECJ has clearly used this statement as its basic guideline in developing a considerable judge-made element in Union law. That having been said, some principles have been developed primarily with reference to international law.253 Some are principles not recognised in the national legal systems of all EU Member States. Even when such principles are present throughout the Union, the form in which they are adopted by the ECJ is usually based primarily on the concept as it exists in one Member State in particular. Regardless of the source of its derivation, once a general principle is adopted by the ECJ, it becomes an independent rule of Union law and leads a separate existence from that of the same principle in the legal system or systems which spawned it. 248 On the issue of a superior court not abiding by its duty to refer, see Case C-453/00 Xxxxx & Xxxxx NV v. Productschap voor Pluimvee en Eieren [2004] ECR I-837, at para. 18 in which the ECJ stated: “That question is justified in the light of, in particular, Article 234 EC [now Art. 267 TFEU], according to which a national court against whose decision there is no judicial remedy is obliged to refer the question to t...
