Special Workshop Abstract

Gábor Halmai, Professor of Law, Budapest/Hungary

The introduction of European citizenship understood in its classical vocabulary could mean a change in the idea of European integration from a union among the peoples of Europe to a people of Europe. This change could eventually mean that citizenship does not presuppose the community of which the citizen is a member, but creates this very community. This line of reasoning stands in sharp contrast with the „no demos” thesis of the German Constitutional Court; that is to say, the claim that the EU is democratically deficient because there is not yet a European demos: it invites us to think of European demos as the product, and not the precondition, of Euro-democracy.

The two key values which make Union citizenship most worthy are, first, that citizenship reinforces and renders more tangible the individual’s sentiment of belonging to the Union, and secondly, that citizenship confers on the individual citizens rights which tie him to the Union.

Thus, fundamental human rights have an important place in the constraction of the concept of European citizenship. The notion of human rights as part of citizenship will be even enrich by the incorporation of the EU Charter of Fundamental Rights into the Treaty Framework, which would make the Charter legally binding and give it constitutional status, and the accession by the EU to the European Convention of Human Rights and Fundamental Freedoms (ECHR), planned by the European Convention.

In my presentation I try to draw your attention to some possible effects of implementing EU law within the constitutional practice of Hungary as a candidate Member state. The case-study I have chosen deals with hate speech, one very special aspect of the most important fundamental rights, the freedom of expression.

As Hungary’s entry to the European Union approaches, the history of criminal sanctions for incitement to hatred that has been unfolding ever since the change of system has reached a new stage. The story centers around various legislative approaches passed by the Hungarian Parliament and regularly thrown out by the Constitutional Court. Amendments to the Criminal Code relating to incitements against the community were found by the judges to be in conflict with the right to freedom of speech enshrined in the constitution. After EU entry, Community law, taking priority over the Hungarian legal system, will demand criminal-law constraints on abusive speech. The question thus arises as to how the curbs imposed by Community law will sit with the Hungarian Constitution’s guarantee of free speech – Section 61 –  a provision that has been given broad interpretation by the Constitutional Court.

It is beyond doubt, however, that in particular the Italian and the German constitutional courts – the latter serving as the model of the Hungarian body in so many respects – have in several decisions called into question the primacy of Community law over the catalog of basic rights set into the national constitution and the level of basic right protection it represents.

So for the moment, it is not possible to predict for certain what the position of the Hungarian constitutional judges will be on the constitutionality of Hungarian legislation drafted in the wake of the EU Framework Decision on hate speech, but the question as to whether they will express their opinion at all, and if so in what form, also depends on the practice they formulate in the matter of reviewing the constitutionality of Community law.