On May 3, 2023, the Hungarian Parliament passed Act X of 2023 (the “Reform”), a significant step toward amending various laws tied to justice in connection with the Hungarian Recovery and Resilience Plan. This action aimed to fulfill the European Union’s conditions for unlocking frozen EU funds, a vital part of Hungary’s Recovery and Resilience Facility (the “RRF”). While the Hungarian government claims progress in achieving key judicial independence milestones, several local NGOs expressed their concerns about the reform’s efficacy in meeting these goals.
The adoption of the Reform and its precise content is of paramount importance for Hungary for several reasons:
- Accessing EU Funds: Beyond being a prerequisite for receiving RRF funds, the judicial reform is also key to ten Commission Implementing Decisions approving Hungary’s operational programs funded by the Union. This intricate link signifies that adherence to milestones is directly tied to unlocking EUR 27 billion in union funds.
- Upholding Rule of Law: All judicial super milestones stem from deep-seated rule of law concerns, echoing recommendations by various EU mechanisms. These include country-specific recommendations, yearly rule of law reviews, and an Article 7 procedure against Hungary. A milestone even addresses a Court of Justice of the European Union (the “CJEU”) judgment that has been unimplemented since 2021, emphasizing the need to address underlying rule of law issues.
- Restoring Judicial Independence: Over the past decade, safeguards protecting judicial independence have eroded. The European Commission-set super milestones lay the foundation for restoring judicial independence in Hungary.
Several NGOs raised concerns about the Reform, citing problems regarding its adoption, as it only took three working days for the Parliament, and its not complete adherence to the relevant super milestones set by the Union. They mentioned that the path the reform took through the legislative process sidestepped public consultation and parliamentary debate, thus challenging the principles of legality and transparent law-making. In their opinion, such a manoeuvre not only undermines the intended democratic process but also casts doubt on the transparency of the reform’s adoption.
Although the Reform attempts to address four significant judicial milestones, the NGOs pointed out that three out of four are marred by deficiencies. Issues persist regarding the authority of the National Judicial Council (the “NJC”, in Hungarian: “Országos Bírói Tanács”, is the supervisory body of the central administration of the courts, which embodies the self-administration of the judiciary in the Hungarian judicial service, and is thus the highest public body of the judicial branch, independent of the legislature and the executive), the independence of Hungary’s Supreme Court, known as the Kúria, and preliminary references to the CJEU.
Issues regarding the National Judicial Council:
The selection of judges is crucial for the independence of the judiciary. Meeting one of the requirements set forth by Milestone 213.a), the Reform provides that the NJC shall give a binding opinion on the draft ministerial decree on the points-based system for the assessment of applications for judicial positions. The NJC will be able to turn to the Constitutional Court if its binding opinion is not obtained in the law-making process. However, the Reform does not set a deadline for amending the current ministerial decree, that has been in effect since 2011. This lack of specificity raises questions about the government’s commitment to fully empower the NJC and ensure the timely implementation of necessary changes. Moreover, the potential influence of the Ministry of Justice over this process introduces an element of uncertainty that could undermine the NJC’s intended impact. Without a well-defined framework for amendment deadlines and safeguards against undue influence, the NJC’s newfound powers could remain constrained.
Issues regarding the independence of the Kúria:
Despite evident improvements, challenges persist within the Kúria, Hungary’s Supreme Court, which are pertinent to its autonomy and effective functioning. The issue of candidacy eligibility continues to cast a shadow over the selection of its president, as the requirement of a minimum of two years of experience as a Kúria judge could potentially limit the pool of eligible candidates. Additionally, the reform’s stance on judicial transfers raises concerns about the potential for undue influence or favoritism in appointments. The ambiguous nature of the case allocation process and the composition of the uniformity complaint chamber (chamber rendering uniformity decisions in cases rasing issues of theoretical importance in order to ensure the uniform application of law within the Hungarian judiciary) further contribute to the obstacles that hinder the Kúria’s full autonomy and impede the transparency of its decision-making mechanisms. Addressing these gaps is essential to fostering a more robust and independent judicial institution.
Issues regarding the preliminary references to the CJEU:
While the reform takes positive strides in eliminating procedural barriers to making preliminary references to the CJEU, a lingering challenge remains unresolved. The Kúria’s binding precedent regarding the relevance of questions in CJEU references continues to pose a substantial obstacle to effective compliance with super milestone 215. This substantive issue fundamentally impacts the efficacy of the CJEU reference mechanism. To ensure genuine compliance with EU standards, it is imperative that this hurdle is squarely addressed, possibly through explicit provisions in procedural codes that unequivocally affirm the primacy of CJEU references and override conflicting interpretations.
Issues regarding the “state of danger”:
One of the most pressing challenges on Hungary’s path to judicial reform is the lingering “state of danger.” This framework, established in 2020, allows the government to rule by decree during emergencies. While this was initially intended to manage the pandemic, its potential impact on the judiciary’s independence raises concerns. Emergency government decrees issued during the state of danger can override parliamentary acts and even curtail fundamental rights in exceptional circumstances. The issue lies in the broad interpretation of “emergency,” which enables the government to extend the state of danger without clear limitations. This extended authority could allow the government to override legislative acts related to the judiciary, including the carefully crafted Reform. Thus, navigating this legal landscape and ensuring that the reform’s provisions withstand potential challenges under the state of danger remains a vital task.
The Reform marks a significant stride toward unlocking EU funds and restoring judicial independence. While progress has been achieved, shortcomings in the legislative process, implementation of judicial milestones, and potential risks remain. Vigilant efforts are necessary to navigate these challenges, ensure the reform’s effectiveness, and safeguard the rule of law.