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Is there any precedent that the ECJ or the ECHR ruled any provisions or amendments of the constitution of a Member State null and void, annulled, repealed, cancelled them or otherwise ordered any Member State to do so? If so, in what case or cases, and on what grounds?

Could the ECJ or the ECHR declare that Orban’s interference with the election system (for e.g. gerrymandering, changing the two-round election method to a single-round format, increasing admission thresholds for parties etc.) deem the election and the resulting legislative actions unlawful and consequently, allow for a member of the opposition or a newly elected government to challenge the legality of the de facto constitution?

Has there been a case in the EU or anywhere else where something similar occurred on the grounds of international law?

EDIT

Currently, ex-ECJ and ex-Supreme Court of Hungary justice Imre Voros has probably the closest answer in effectively suggesting the annulment of the decree which was picked up by one or two of the prime minister-elects like Dobrev; however, I've only see this to be suggested as a measure that the new legislature would declare. However, the legislature does not have such power, neither the executive branch does, it has to be the judicial branch which is filled with Orbans. The ECJ or the ECHR seem the only two options (or potentially the ICJ for his single-man treatment of COVID -- not only power, but liability is also undivided when one takes it all).

Not interested in answers from supporters of Trump or worshippers of Orban and the like unless any such answer will be backed up by cited case law of the ECJ or the ECHR.

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  • 1
    Why the double standard? People who agree with your political views don’t need to provide citations but people who don’t do?
    – Dale M
    Dec 13, 2021 at 21:02
  • @DaleM Hungary is no longer a democracy. Who is the legislation? It is +134 of 200 members of Fidesz. Who is Fidesz? Viktor Orban himself; whoever says that a single letter is passed in Hungary without him in approval or being carless as it does not effect his rule adversely has no clue about Hungary. Who is the supermajority then, and what is in place of a democratic constitution? Fidesz, that is Orban; and what Orban thinks is in his best interest. Who have been the Presidents? Orban's puppets, Schmitt and now Ader. Neither ever used their veto for any matter harming Orban. Who is [...]
    – kisspuska
    Dec 13, 2021 at 22:53
  • I’m not saying I disagree with you, I’m just saying that just because I agree with you gives you sufficient reason to believe what I say.
    – Dale M
    Dec 13, 2021 at 22:55
  • [...] the administration and all the ministers, secretaries and their deputies in it? Whoever does what Orban says otherwise you are fired so Orban. Who is, then, the head of intelligence, law enforcement and military? The respective ministers of each, Varga, Pinter, Benko, that is, Orban. Who is the head of the prosecution? Whoever does what Orban says or he is fired, and the supermajority will put whoever Orban spells the name of instead — Peter Polt (aka Peter Pol Pot). So who is the executive branch? Orban. Orban is the "constitution", the legislation, the executive branch.
    – kisspuska
    Dec 13, 2021 at 22:59
  • And I am glad to break down the somewhat more sophisticated scheme how the national judicial system is also hijacked from the "constitutional court", the curia (this was created by Fidesz) to the lowest courts. But it would take a chat page for that. I'm just saying: Power is one and undivided in Hungary in the hands of Orban regardless whether he acts out of his own mind or just executing someone else's wishes. And just because it doesn't look like a duck or quacks like a duck, Orban is a dictator and Hungary is an autocratic regime, no ifs or buts.
    – kisspuska
    Dec 13, 2021 at 23:03

2 Answers 2

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There's a lot that could be discussed here because your question effectively asks about the widely discussed and disputed relationship of European nations and the sovereignty they may or may not have ceded to the EU and ECHR especially with regards to fundamental rights in national constitutions.

There is no simple answer here, but I'll start with the general question of whether the ECJ can overrule a Member State's constitution as that's what I'm most familiar with.

Primacy of EU law

ECJ case law is clear and long established. EU law has primacy over national law and this includes their constitutions. Costa v. ENEL is an early landmark case:

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.

And more explicitly, in Internationale Handelsgesellschaft where potential conflict with the German constitution was at hand:

Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. [...] Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.

However, the treaties do not explicitly state this position in any substantive Article. The closest we have is a declaration attached to the Treaty of Lisbon:

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

In practice, this has left enough room for Member States to disagree with EU primacy (though some, like Ireland, explicitly place EU law above their own constitutions leaving no room for such conflict).

So what happens when a Member State's highest constitutional court affirms national constitutional law in contradiction with EU law? The legal answer is really just restating the facts: According to the ECJ, EU law sits above and displaces contradictory provisions of a national constitution. According to the relevant national constitutional courts, EU law in contradiction with the national constitution cannot be enforced.

The reality is, this isn't a legal question. In theory, this is a question that would have to be resolved politically, and in practice the answer is whichever side ultimately enforces their interpretation.

Example EU case law

Historically, examples of the ECJ directly overruling a nation's constitution are extremely rare, in part due to similar legal traditions resulting in generally compatible constitutions, and in part, a (speculative) desire to avoid such open conflict if possible.

However, recently this is an area of law that has flared up recently in many Member States. I'll gloss over a few examples I'm somewhat familiar with.

Germany – the Solange cases

In the above cited Case 11/70, the European Community (as it was then) court upheld its own law against the German court's concerns of it violating fundamental rights in the German constitution. When the case returned to Germany, the German Constitutional Court refused to accept the result, saying that as long as the Community did not guarantee fundamental rights, they would not enforce the law in contradiction with the German Constitution. In German law, this case if popularly referred to as Solange I, German for "as long as."

Sixteen years later, the German Constitutional Court evidently felt the condition had been satisfied in Solange II and gave new meaning to solange. They said that as long as basic fundamental rights were respected, they would no longer be regularly reviewing EU law for compatibility with the German Constitution. Note that the court clearly left the door open for future review, though this would not be the default position.

So that brings us to Solange III. Here the court did walk back on Solange II a bit, asserting that when implementing EU law, it would in fact review compatibility with the fundamental right of human dignity. That said the court then sidestepped the review in the case at hand and furthermore did not refer a question to the ECJ, thus not enabling a European response. See The Bundesverfassungsgericht’s human dignity review by Clara Rauchegger (2018) for a good review of Solange III and the case law it builds upon.

That article points out that Solange III may have had an additional purpose: ensuring the court re-asserted its authority for a potential upcoming battle against the European Central Bank. This came to be as the court ruled an ECB program invalid in Germany despite earlier approval by the ECJ. The Commission threatened legal action through dropped the matter a few weeks ago after German government assurances that they would comply with EU law. However as Politico notes:

It remains, however, uncertain how the German government could provide such an assurance, given that it has no say over the constitutional court, which is an independent juridical body.

Italy – the Taricco cases

This ones more complicated, here's a thorough analysis which I'll try to summarize. I'll cite an analysis on for reference. The dispute centred around retroactivity of criminal statutes of limitations and legal certainty. In Taricco I, the ECJ ruled that the limitations for VAT offences was too short and was therefore to be disregarded by national courts. This triggered a bit of a constitutional crisis in Italy: The EU (and ECHR) perspective is that limitations periods are merely procedural and extending them does not violate guarantees against retroactive criminal penalties. This is not the case in Italy where limitations periods are substantive, and lengthening them cannot be done retroactively.

So the ECJ, perhaps without realizing it, ordered Italian courts to disregard Italian constitutional protections. The ensuing chaos triggered the Italian Constitutional Court to send a second reference, Taricco II on effectively the same legal question amidst calls for the ICC to disregard the ECJ ruling, much as the German courts did in Solange I. However, the ICC did add a direct question to the ECJ on the subject of EU law primacy, one which the court opted not to answer.

The ECJ's resolution was ultimately to accommodate the Italian criminal law peculiarity while not dismissing it's earlier ruling. It essentially subordinated its earlier ruling to only apply when fundamental rights would not be violated. Essentiatlly while the ECJ continued to hold that the Italian limitations period was too short, the courts could not infact disregard the limitations period as it would violate Italian fundamental rights. It is instead for the Italian legislature to resolve the incompatibility (presumably by introducing longer limitations periods non-retroactively).

Poland and Hungary rule-of-law

With respect to Poland, and more recently Hungary, the legal situation is very much ongoing and developing. According to the BBC, Poland's constitutional court had earlier declared their that EU law does not have primacy over their constitution. Then in a related case, the ECJ imposed a 1 million Euro daily fine on Poland for violations of the judicial independence of their own judges. I couldn't find information on whether they are actually paying the fine, but they were already refusing to pay an early 0.5 million daily fine.

This dispute is very much still ongoing and the Commission has now sent letters to both Poland and Hungary where withholding of EU funds due to rule-of-law violations is a possibility. They have until mid-January to respond. Complicating the legal picture somewhat is that many thought the Commission was very slow to act on this matter. Among them was in fact the European Parliament who have initiated a lawsuite at the ECJ against the Commission on their failure to invoke the mechanism for withholding funds.

Briefly, ECtHR

Note: I'm using ECtHR for European Court of Human Rights to distinguish from the ECHR I use later for the European Convention on Human Rights, which is the treaty the ECtHR adjudicates.

I'm much less familiar here, but the principles are the same. The ECtHR decision are in theory binding on its members according to the ECHR, but enforcement is even more difficult. For example, the Constitution of Bosnia and Herzegovina adopted in the aftermath of the Bosnian War reserved certain political positions to specific ethnic groups. In 2009, the ECtHR found this to be a violation of human rights, but this has yet to cause any constitutional amendment.

Technicalities in bringing a case

Could the ECJ or the ECHR [...] allow for a member of the opposition or a newly elected government to challenge the legality of the de facto constitution?

For both courts, this challenge is indirect. At the ECJ, an individual cannot unilaterally bring a challenge to national law (the lower General Court allows individuals to bring actions against EU institutions, but not national ones). They must bring the challenge at national courts, who would then refer questions of EU law to the ECJ as necessary. At the ECHR, domestic options must be exhausted first. In practice this means that at minimum, appeals must be exhausted in the national courts first, but then a case could be filed.

Specifically for your example of the situation in Hungary, a more realistic scenario at the EU would be for the European Commission to file a case against Hungary, like it has for the issues with Polish judicial independence.

I'm speculating for the ECtHR, but my impression is that this is not a viable option. There would be enforcement problems, a case would certainly take a while to get heard due to large volumes, and I am not convinced there's a ECHR violation described in your question. An individual would have specifically have their personal human rights violated, I am unconvinced that the tweaks to the election system described would amount to a ECHR violation, especially if people are still allowed their democratic vote (this is my theoretical guess, I'm too unfamiliar to hazard a guess on the practical situation).

Result of judgment declaring conflict of laws

Again, the issue is one of enforcement. For both ECJ and ECtHR, their decisions do not necessarily directly and immediately render national law inoperable in the same sense that eg. the US Supreme Court does when it declares a statute to be unconstitutional (though again, some countries have indeed arranged their constitutional structures that way).

Specifically for the ECJ, if it finds contradiction with EU law, it will issue a declaration along the lines of "this EU legal provision precludes national law that says X". The case at hand is then returned to the national court for further proceedings, and for it to resolve the conflict of laws in accordance with national procedures.

One interesting national procedure was that of the UK before it left the EU. Due to the principle of Parliamentary supremacy, its courts cannot generally invalidate Acts of Parliament. However, courts interpreted s. 2 of the European Communities Act 1972 as granting them permission to disapply statutes in conflict with EU law.

On the ECHR side, powers of the UK courts are weaker. The Human Rights Act 1998 gives them the power to issue a declaration of incompatibility. This does not invalidate UK law and is merely a notification to Parliament that there exists an incompatibility with the ECHR. See Benkharbouche/Janah v Sudan Embassy/Libya for an example of both disapplication and a declaration of incompatibility (on the same legislation, which seems a bit redundant to me).

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  • This is a fair assessment, thank you! Regarding Hungary, there was a fairly new (last year or before) a precedent set when a lower court judge in Hungary called a national law's compliance with Community Law into question, and directly sent the questions to the ECJ. In response the Commission of Judges and/or the capital prosecution tried to punish the judge, but eventually the ECJ ruled that the only authority in interpreting Community Law is, in fact, the ECJ, and the judge had a right to request a preliminary review of compatibility. The case was about a Swede not getting an interpreter
    – kisspuska
    Dec 16, 2021 at 7:49
  • Regarding the ECtHR question, one of the Protocols of the ECHR includes Article 3, Rights to Free Elections which provides: "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature" the current conditions are no longer able, and specifically devised to deprive the people of the free expression of their opinion in the choice of the legislature. Is there any precedent on the use of this Article? Could it help?
    – kisspuska
    Dec 16, 2021 at 8:04
  • I have no doubt that if a government is replace, the people will not have a lot of say if the new government decides to throw out the decree's of Orban, but a suppressed unrest will remain present as they will keep saying it was unfair, their constitution was stolen, bla-bla-bla, but if the case is 1) brought before a court with jurisdiction, and 2) a law that was in effect at the time (like Article 3) when Orban ventured out to hijack Hungary with violative decrees of statutory/constitutional use then a judgment could be handed down to backup the annulment of the criminally declared decrees
    – kisspuska
    Dec 16, 2021 at 8:11
  • "I am unconvinced that the tweaks to the election system described would amount to a ECHR violation, especially if people are still allowed their democratic vote (this is my theoretical guess, I'm too unfamiliar to hazard a guess on the practical situation)" the problem is, they are not: 1) "Greater Hungary" citizens from Romania, Slovakia, Ukraine etc. can vote in mail, those who live and work abroad have to travel to an embassy on a single day. The voting is not even open for, say, a few days let alone allow for mail voting; 2) people in small villages are blackmailed to vote Fidesz [...]
    – kisspuska
    Dec 16, 2021 at 8:14
  • otherwise, they may lose their public work employment that pays 60% of the minimum wage for harder labor in villages where no other employer is present (if the numbers look suspicious, the workers will be collectively retaliated on); 3) gerrymandering; 4) making away two-round voting in a pluralistic representative democracy is a clear violation; 5) increasing admission thresholds for the parties, and forcing them into coalition etc. of which each could account for a stolen election, but all of them is a clear machination well-documented. If this does not violate Article 3, nothing does.
    – kisspuska
    Dec 16, 2021 at 8:17
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This is really an addition to DPenner1's excellent answer but dealing specifically with the question of the supremacy of EU law.

Supremacy of EU Law and the CJEU

The key to understanding the overall logical conflict is this passage from the Van Gend en Loos case:

The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the Community.

EU law is supreme within its proper scope (the "limited fields") but outside those "limited fields" (which are not quite so limited now as they were then) the national law of each member state rules supreme.

The logical conflict arises in the boundary case. If the CJEU decides that a certain matter is within those "limited fields" but the highest court in a member state decides that it is not, you have an irreconcilable logical conflict. It is irreconcilable whenever the national court, while recognising that EU law is supreme within the "limited fields" regards a particular pronouncement by the CJEU as being outside what the national court thinks are the "limited fields" of the CJEU's jurisdiction.

The fact that the CJEU thinks that a matter is within its jurisdiction does not resolve the logical problem: the national court thinks that the CJEU's decision about is own jurisdiction is, in the particular case, in fact outside its jurisdiction.

These irreconcilable conflicts arise in one of two principle ways:

  1. The national court on the one hand, and the CJEU on the other, may simply interpret the EU treaty differently.

  2. In addition, or alternatively, the member state may have a constitution with a bill of rights which limits the competence of the organs of the state so that the national court may say that even if the CJEU is right about the interpretation of the treaty, the national government had no power under the constitution to bind the nation in the particular matter and so it would be unconstitutional to recognise CJEU jurisdiction in that matter whatever the treaty says.

The surprising thing, in many ways, is that the EU has existed for so long without this logical conflict tearing it apart. It has managed to do this by political horse trading. A German court defies the CJEU but things are arranged so that practical difficulties are avoided - it never comes to the crunch - and life carries on.

Hungary is different. Unlike Germany it is not a net contributor to the EU and it is a political outsider for all kinds of reasons. Furthermore the CJEU has gone further than it has ever before dared to go. It has said that because it is a principle of EU law that it must be effective, and because its effectiveness is affected by how "reliable" national courts are, it now claims that it has jurisdiction to declare invalid national laws about how judges are appointed and retired.

Trying to put this as objectively as I can I think many people see an irony in the CJEU, whose reputation for upholding its own independence from political interference has been badly shaken by L'affair Sharpston, unilaterally extending its own powers under colour of upholding the rule of law within member states.

The European Court of Human Rights

Decisions of the ECtHR are not directly effective in the law of signatory countries. If a country is found in breach of the convention it is duty bound - in terms of the treaty - to introduce legislation to remedy the gap but until it does so the internal law of the country remains unchanged.

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  • The #1 irreconcilability has been recently decided: The ultimate and sole authority in constructing Community Law is the ECJ, and this was decided specifically in a case regarding Hungary. 2# should also not be so irreconcilable so long as the specific provision of the treaty was in place at the time of the Member State’s joining to the Union. A prime example used to be the UK where even it’s own highest court decided that all the case law of the ECJ has been implicitly accepted by the UK at the time of its joining. I should start digging these cases up as the former came up in my comments ☝🏼
    – kisspuska
    Dec 16, 2021 at 15:09
  • That is the view of the ECJ, yes.
    – Nemo
    Dec 16, 2021 at 15:13
  • “it now claims that it has jurisdiction to declare invalid national laws about how judges are appointed and retired.” This had to do a lot with gay MEP Szajer and/or wife having been blackmailed that they would be doxxed or otherwise disclosed his sexual orientation, and Tunde Hando (the president of the commission of courts with authority over judges & the wife) was executing all pressure on judges as expected or demanded by Orban. The control didn’t only relate to appointments and retirements, but also to depriving premiums if they didn’t meet an excessive quota of decisions per year etc.
    – kisspuska
    Dec 16, 2021 at 15:15
  • By the way, logical conflict arises when the premises of conclusion are contradictory; in this case, I fail to see what would these premises be. Case law existed about the primacy of Community Law, including its case laws, which expressly declared primacy over national law; the referendum in Hungary to join the EU also implicitly meant agreement to it.
    – kisspuska
    Dec 16, 2021 at 15:23
  • Most countries are not willing to accept that the CJEU has unrestricted power to decide the extent of its own (theoretically limited) jurisdiction. Where countries have a formal constitution, such a power will often be found to be incompatible with the constitution. No constitutional court will accept that they should disapply the constitution at the behest of another entity.
    – Nemo
    Dec 16, 2021 at 15:34

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