The goal of the EU with respect to the AFSJ is the creation of an open and secure space in a Europe, without internal borders, but with an evolving justice agenda. Transnational cooperation in these areas is based on Member States mutually trusting each other on offering a sufficient level of fundamental rights protection, which allows the mutual recognition of decisions of national authorities (judicial or not). The existence of mutual trust is therefore the cornerstone in this area, without which the operation of mutual recognition becomes dysfunctional. Mutual trust among Member States regarding the protection of fundamental rights is more often presumed or commanded by the Court rather than properly constructed, or even thoroughly checked. This crisis in the premise of mutual trust stemming from a compulsive presumption has acted to the detriment of the protection of fundamental rights. However, this is slowly changing. The paper will discuss the slow changes of this relationship in light of recent case law.
This paper explores the motives to include significant safeguards into the new Hungarian constitution. The first part describes the rise of Fidesz and its electoral victory in 2010, including more systematic interpretation concerning the origins of this large party system shift. The second part probes relevant theories of constitutional entrenchment and finds that there is no fundamental explanation why the constitution is drafted like it is. In conclusion, the paper disagrees with the most of present scholarship, which is considering the new Hungarian constitution to be formally within EU mainstream, while expressing concerns about Viktor Orbán’s illiberal project behind it. In contrast, I think the constitution itself is sloppily drafted, with a potential to create a dangerous crisis after Orbán’s eventual demise.
The emergence of the radical right party Vox in Spain has dramatically altered the political landscape in this country. This paper carries out an analysis of the political manifesto of this party with a double aim: analyzing whether their political proposals qualify as ‘illiberal’ and assessing the extent to which the Spanish Constitution can constrain the party. As it will be showed, a number of proposals by this party do qualify as ‘illiberal’ and, if implemented, might deteriorate democracy in Spain. However, those proposals are hardly compatible with any reasonable interpretation of the Spanish Constitution. Given that such Constitution is very rigid, such proposals are not politically viable. This will force the party to face a constitutional politics dilemma: either the party moderates so that its proposals fit the constitutional frame, or it radicalizes and rejects the Spanish Constitution as an insurmountable obstacle to the realization of its policy preferences.
A state who has ended up with a mixed legal system whether by choice or by history is in a better position to face the new legal challenge posed by economics and politics? Hence reference is made to the constitutional/administrative law setting. Reference is made to the evolution of the legal system of Malta which for centuries has been a pure civil system. Then when Malta has been a British colony for a century and a half, common law was introduced. After independence, Malta opted out of a free choice to consolidate the mixedness in its system and common law influence became stronger. Needless to say, for the last two decades, there has also been a strong influence from the EU legal system. Reference is also made as to how the Maltese legal system adapted itself with its ‘marriage’ with the EU legal order and how Malta managed to reconcile the Westminster model of parliamentary supremacy with constitutional supremacy and then with EU law supremacy with its accession to the EU.
North differentiates between formal and informal elements of institutions, and there might be a strong relation between the two. E.g. the idea of power-sharing can be seen as a tool to overcome the ‘state of fear’. However, other emotions may shape the wording of constitutions, too (Sajó). E.g. a short text can be labelled as a trust-based text which leaves a larger interpratative sphere for the judges (Dixon). Yet, an empirical research has shown that there is a negative correlation between the level of trust and the length of constitutions (Voigt).
This paper aims to present the symptoms of institutional distrust within the Fundamental Law of Hungary and its 7th amendment. It will be presented a restrictive tendency vis-á-vis the Constitutional Court (e.g. the repeal of the former case law, the overruling of the decisions, the limitation of the powers and so on) and the new pressure for a centralized interpretation of the laws toward ordinary courts appeared in the 7th amendment.