The Hungarian Constitutional Court decides the proclamation of the Agreement on a Unified Patent Court is not compatible with the Fundamental Law

Art. 25 of the Fundamental Law states:
(1) Courts shall administer justice. The supreme judicial authority shall be the Curia.
(2) The courts shall adjudicate:
   a) criminal cases, private cases, and other matters defined by law;
   b) the legality of administrative decisions;
   c) the legality of municipal decrees, and shall annul them where appropriate;
   d) cases in which to declare a municipal government at fault in failing to comply with legislative requirements defined by law.
(3) In addition to what is contained in Para.(2) hereof, the Curia shall ensure the unification of jurisprudence, and shall pass resolutions in the interest of law which shall be binding for all courts.
(4) The judicial system shall be organised at hierarchical levels. Special courts for specific groups of cases may be established.
(5) The President of the Országos Bírósági Hivatal [in English: National Office for the Judiciary] shall manage the central administrative affairs of the courts. The Országos Bírói Tanács [in English: National Committee of Justices] shall oversee the central administration of courts. The Országos Bírói Tanács and other bodies of judicial self-government shall participate in the administration of the courts.
(6) The President of the Országos Bírósági Hivatal shall be elected by Parliament from among the judges for a period of nine years on a recommendation by the President of the Republic. The President of the Országos Bírósági Hivatal shall be elected by a two-thirds majority of votes of Members of Parliament. The President of the Curia shall have a seat in the Országos Bírói Tanács, and other members shall be elected by the judges as specified in an implementing act.
(7) Other bodies may also be authorised to hear certain disputes under an act of Parliament.
(8) Detailed rules of the organisational structure and administration of courts and for the supervision of their central administration, the legal status and the remuneration of judges shall be laid down in an implementing act.

Based on the petition of the Government, the Constitutional Court had to assess two key questions regarding the applicable constitutional rules for the ratification of the UPCA.

1. The Constitutional Court examined the nature of “enhanced cooperation” and whether it should be considered as part of EU law, or as an international treaty outside of the EU framework.

The Constitutional Court emphasised that Hungary did not disband on its sovereignty by joining the European Union. Instead on the basis of Article E) of the Fundamental Law, it allowed certain of its constitutional competencies to be exercised jointly with the other Member States through the institutions of the European Union – only to the extent necessary – to exercise the rights and fulfil the obligations deriving from the founding treaties. Therefore, the sovereignty of Hungary should be presumed when assessing the exercise of other competencies. The Constitutional Court stated that enhanced cooperation itself is based on EU law, and the EU actions authorising the creation and execution thereof are part of EU law, which fall under Article E) of the Fundamental Law. This is not necessarily the case for separate international treaties concluded within enhanced cooperation (such as the UPCA), which should be assessed otherwise. 

Art. E) of the Fundamental Law states:
(1) Hungary shall take an active part in establishing a European unity in the pursuit of freedom, well-being and security for the peoples of Europe.
(2) In its role as a Member State of the European Union and by virtue of international treaty, Hungary may - to the extent necessary for exercising its rights and discharging its obligations stemming from the founding Treaties - exercise certain competencies deriving from the Fundamental Law, together with the other Member States, through the institutions of the European Union.
(3) General binding rules of conduct may be laid down in European Union legislation within the framework set out in Para. (2).
(4) The votes of two-thirds of all Members of Parliament shall be required to authorise the recognition of an international treaty referred to in Para. (2) as binding in scope.

The…