Posted: June 29th, 2018
Hungarian Constutional Court rules that UPCA cannot be ratified
On 29th June, 2018 the decision of the Hungarian Constitutional Court was published on the Court’s website following the Hungarian Government’s motion for the interpretation of the Hungarian Constitution (Basic Act) in relation to the ratification of the UPC Agreement.
Today the Constitutional Court ruled that the UPC Agreement as an international agreement made in the framework of enhanced cooperation deprives the Hungarian courts from having competence for judicial review on a group of domestic legal disputes of individuals. As such right for judicial review is exclusively reserved for Hungarian courts under Article 24 (2) of the Basic Act, the UPC Agreement cannot be ratified based on the current wording of the constitution.
The Hungarian language decision is available here. An English language summary is expected to be published at www.mkab.hu soon.
Reported by: Eszter Szakács, Sár and Partners
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My thanks to the EPLAW blog, to make apparent Hungary’s reason for not ratifying the UPC.
It lies in the fact “that the UPC Agreement as an international agreement made in the framework of enhanced cooperation deprives the Hungarian courts from having competence for judicial review on a group of domestic legal disputes of individuals. As such right for judicial review is exclusively reserved for Hungarian courts under Article 24 (2) of the Basic Act, the UPC Agreement cannot be ratified based on the current wording of the constitution.”
Was this not foreseeable up-front? Probably the wish of having a training centre for UPC judges in Budapest muffled any contrary thoughts.
The question raised is nevertheless quite interesting, and may not only be a constitutional problem in Hungary but also a potential constitutional problem in other countries. To my knowledge, the UPC has never been scrutinised by constitutional specialists, in any member state, although it might have been good to do so.
It would also having been good as well to have the CJEU looking at it. There might have been good reasons not to do so, but then why not make those public? Merely claiming that the UPC is in conformity with Opinion C 1/09 is an allegation. The UPC will certainly not any longer be in conformity with C 1/09 should the UK be member of it after Brexit, and even worse if, as suggested here and there, non-EU member states could join it.
There remains a problem in the UPC, as well as in the EPC, that is the absence of revision instance as to the substance. In both treaties revision is only possible for procedural reasons. A great variety of R decisions of the EBA of the EPO shows a fear to be dragged in substantial matters rather than procedural ones. And yet, it does not seem enough to have the EBA, or the Court of Appeal of the UPC, only acting in case of grossly diverging decisions where it comes to the interpretation of the EPC/UPC, but also in more delicate cases where it is a matter of substance.