19 Eur. Pub. L. 489 (2013)
ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v. Hungary, The

handle is hein.kluwer/epl0019 and id is 523 raw text is: The ECJ as the Guardian of the Hungarian
Constitution: Case C-286/12 Commission v.
Hungary
Attila VINCZE*
Many feared1 that by adopting the new Hungarian fundamental law a 'light' version of
constitutionalism will come into effect, a new constitutional system where classical understandings
of individual liberty and separation powers are not valid anymore. Many areas spring to one's
mind to demonstrate these concerns: data protection,2 media legislation or the very case in
question, the early retirement ofjudges.? Interestingly, both the European Court ofJustice (ECJ)
and the Hungarian Constitutional Court4 ruled on this issue, and as the case presents an
interesting co-operation or co-dependence of Member State and European constitutional order
both decisions will be portrayed.
1 CONTEXT
Until 31 December 2011, the applicable law on the legal status and remuneration
of judges essentially allowed judges to remain in office until the age of 70. The
new Fundamental Law of Hungary, however, provides, in Article 26(2), that 'with
the exception of the President of the Kfiria,5 judges may remain in office until the
general retirement age'. Article 12(1) of the transitional provisions of the Basic Law
Senior lecturer in public and European law and grant holder of the National Excellence Program,
Andrassy University Budapest. attila.vincze@andrassyuni.hu.
This research was realized in the frames of TAMOP 4.2.4. A/1-11-1-2012-0001 'National
Excellence Program - Elaborating and operating an inland student and researcher personal support
system' The project was subsidized by the European Union and co-financed by the European Social
Fund.
See: A.Jakab & P. Sonnevend, Kontinuitt mit Midngeln: Das nee ungarische Grundgesetz, Zeitschrift fir
auslindisches 6ffendiches Recht und V6lkerrecht 79-102 (2012); A. Vincze, The New Hungarian
Constitution: Redrafting, Rebranding or Revolution? Vienna J. Intl. Const. L. 88-109 (2012); A.Vincze, Die
neue Verfassung Ungarns, Zeitschrift flir Staats- un Europawissenschaften 110-129 (2004); A. Vincze &
M.Varj6i, Hungary - The New Basic Law, European Pub. L. 436-457 (2012).
2   Case C-288/12 action brought on 8 June 2012 - Commission v. Hungary.
3   Case C-286/12 Commission v. Hungary, nyr (hereinafter also ECJjudgement).
4   Decision 33/2012 (VII. 17.) AB.
5   The Venice Commission asked in 2011 the completely justified question as to whether this change of
the judicial body's name will result in a replacement of the Supreme Court's president by a new
president of the 'Curia', which indeed happened. Commission for Democracy Through Law (Venice
Vincze, Attila. 'The ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v.
Hungary'. European Public Law 19, no. 3 (2013): 489-500.
 2013 Kluwer Law International BV, The Netherlands

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