National(ist) Constitutional Identity?: Hungary's Road to Abuse Constitutional Pluralism

25 Pages Posted: 4 May 2017

See all articles by Gábor Halmai

Gábor Halmai

European University Institute - Department of Law (LAW)

Date Written: 2017

Abstract

This paper discusses a decision of the Hungarian Constitutional Court issued in December 2016, in which the judges refer to the country’s constitutional identity to justify the government’s refusal to apply the EU’s refugee relocation scheme in Hungary. The misuse of constitutional identity, the paper argues cannot be derived from the previous jurisprudence of the Court. Right before and after the EU accession of the country the Court followed a mild approach of limited EU law primacy approach, which did not change immediately after Viktor Orbán’s government introduced an illiberal constitutional system and packed the Constitutional Court after 2010. The reason for change has been the government’s anti-migration policy, and the Court was instrumental to justify the government’s desire to exclude refugees from Hungary and to evade its obligations under European law.

The paper concludes that this abuse of constitutional identity for merely nationalistic political purposes discredits every genuine and legitimate reference to national constitutional identity claims, and strengthens the calls for an end of constitutional pluralism in the EU altogether.

Keywords: Constitutional identity; Constitutional court of Hungary; Anti-migration legislation

Suggested Citation

Halmai, Gábor, National(ist) Constitutional Identity?: Hungary's Road to Abuse Constitutional Pluralism (2017). EUI Department of Law Research Paper No. 2017/08. Available at SSRN: https://ssrn.com/abstract=2962969 or http://dx.doi.org/10.2139/ssrn.2962969

Gábor Halmai (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY
39-055-4686-401 (Phone)

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