The study analyses two questions: the necessity of a European Constitution, and the basic content of the European Constitutional Treaty (with the aim to analyse in a separate study the potential effects of the Treaty on the Hungarian Constitution and its application by the Hungarian Constitutional Court).
The study analyses the potential effects of the Treaty on the Hungarian Constitution and its application by the Hungarian Constitutional Court, and the more general-and at the European Law’s present stage of the development unavoidable-problem of the theoretical analysis of European Law as a branch of law.The study points out that the Hungarian Constitution’s Accession Clause (Article 2/A) has not solved the problem of the primacy of Community Law, as far as the relationship between EU Law and the Hungarian Constitution is concerned, therefore the Constitutional Court encounters a problem that is increasingly difficult to resolve, when facing issues relating to the incompatibility of Hungarian statutes with EU Law. The study criticises some solutions proposed by the Constitutional Treaty (e.g. the institution of “recommendations”-(the present practice of “guidelines” etc.) which is definitely unconstitutional according to the Hungarian Constitution and its application practice by the Constitutional Court. Finally the study complements the problems thus outlined with the fact that the concept of EU Law and its various parts have not been clarified from a dogmatic perspective-the time has come to systematize this enormous material of law, especially when a Constitutional Treaty makes the attempt to summarize the legal fundaments of the unprecedented effort to develop an economic and political integration in Europe.
The author deals with an important question of the Hungarian constitutional law, which plays a relevant role during the accession process of a state of the European Union (EU). It means that the question of legal haromization always arises, when a state is going to join the EU. The author focuses on the question, whether the international law-namely the law of the EU-or the national law should be privileged in given cases. The author introduces the possible conflicts between international law and domestic law with the help of several examples. He refers to the numerous solutions of member-states of the EU and also mentions the situation of some would-be member-states, too. The author highlights the point of view that the Community law precedes the constitutions of the member-states. As a result of this the Hungarian constitution has to be modified in order to meet the requirements of the legal harmonization process, which will emerge with the access of Hungary to the EU.
The essay analyses the fourth and fifth amendments of the Hungarian Fundamental Law with special respect to the opinion of the Venice Commission and the resolution of the European Parliament. It will be pointed out that the fourth amendment transferred several legal regulations into the Fundamental Law which were previously qualified as unconstitutional by the Hungarian Constitutional Court. The Fundamental Law contains at the same time the declaration of a fundamental right and the unconstitutional limitation of it by the latter regulation. The inconsistency is evident, therefore the Constitutional Court has to choose in the future between the contradictory constitutional regulations. A possibility to solve this dilemma could be the separation of the legal norms of the constitution as lex generalis (e.g. rule of law, human dignity) and lex specialis which could not derogate the lex generalis, and ca nnot be applied accordingly.