The Acting President of the Budapest-Capital Regional Court (Fővárosi Törvényszék) initiated disciplinary proceedings against Judge Csaba Vasvári for referring questions to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union. The motion, which argues that the content of the questions violates the “dignity of the judiciary”, is unprecedented in Hungary. Moreover, the effect of the disciplinary motion dangerously undermines the functioning of the EU legal order by exerting a chilling effect on judges through discouraging the use of preliminary references intended to ensure uniform application of EU law.
Judge Vasvári, a criminal judge at the Central District Court of Pest (PKKB) and a member of the National Judicial Council referred three sets of questions to the CJEU on 11 July 2019. Two of the questions concerned judicial independence: one raised issues about the appointment of court presidents who have wide powers over judges of their courts and the second asked whether the level of salary given to judges is high enough to maintain independence. (Details: https://verfassungsblog.de/a-hungarian-judge-seeks-protection-from-the-cjeu-part-i/).
Upon the extraordinary appeal of the Prosecutor General Péter Polt, who is a close ally of the Government, the Kúria (Supreme Court) ruled on 10 September 2019 that the preliminary questions violate Hungarian law. The Kúria ruled that the questions are irrelevant for the case at hand. Although the ruling does not stop the procedure (no national higher court in the EU has such a right), it might have a significant chilling effect on Hungarian judges. (More on the Kúria’s ruling: https://verfassungsblog.de/luxemburg-as-the-last-resort/).
The disciplinary proceedings and chilling effect
The motion for disciplinary proceedings argues that by asking irrelevant and unsubstantiated questions, Judge Vasvári violated Section 37(2) of Act CLXII of 2011 on the status and remuneration of judges, which prescribed that judges should conduct themselves with dignity and should refrain from doing anything which would undermine the “dignity of the judiciary”. The request to start disciplinary proceedings was reported by the press on 6 November 2019, but the order was signed in October 2019. (More on the request to start disciplinary proceedings, in Hungarian, here.)
The Acting President may only initiate the disciplinary proceedings, and his motion will be considered by a panel of the Service Court, the internal court of the judiciary, will decide if disciplinary proceedings will be started. It cannot be excluded that Judge Vasvári’s membership in the National Judicial Council and the vague reasoning of the motion will prevent the procedure from even formally starting. But the combined chilling effect of the Kúria’s decision rendering a CJEU reference illegal under Hungarian law and the threat of disciplinary proceedings might deter other judges from referring questions on sensitive topics such as judicial independence to the CJEU. (More on the ongoing constitutional crisis within the Hungarian judiciary: https://helsinki.hu/wp-content/uploads/A-Constitutional-Crisis-in-the-Hungarian-Judiciary-09072019.pdf.)
Undermining the preliminary reference procedure threatens the practical functioning of the EU legal order, which might have negative effects on people and businesses in Hungary and in other EU Member States.
The Hungarian Helsinki Committee calls on all stakeholders to raise concerns with their respective Hungarian counterparts on this latest threat to the independence of the judiciary.
We especially urge the European Commission to closely follow the situation and take the necessary steps to maintain the loyal and effective application of the Treaties in Hungary.
We call on all stakeholders to remain seized of the constitutional crisis within the Hungarian judiciary and facilitate a speedy resolution in order to maintain the values enshrined in Article 2 of the Treaty on the European Union.