On 18 July 2017, the Hungarian Minister of Justice, acting on behalf of the government, filed a motion with the Constitutional Court of Hungary (No. X / 01514/2017) requesting the Court’s opinion on the compatibility of the UPC Agreement (UPCA) with the Hungarian Constitution, and on the appropriate mechanism that must be used for its ratification. The motion comes only a few months after the government commissioned in May 2017 a study to determine the correct legal basis for ratification of the UPC Agreement and whether this would require a constitutional amendment.

The motion raises the question of whether ratification of the UPC Agreement can be operated under the mechanism for the transfer of sovereignty in Article E, paragraphs (2) and (4) of the Constitution. This provision allows Hungary to participate as a Member State of the EU, and to enter international agreements with other Member States, in order to exercise some of its constitutional competences jointly with other Member States through the institutions of the EU, subject to ratification of such an agreement by two thirds of the parliament. The motion notes that the UPCA is not an EU treaty, although only EU Member States can enter it and its coming into force is the condition for the enforceability of an EU Regulation enacted by enhanced cooperation (on the creation of the unitary patent). The government seeks the Court’s views inter alia on whether the UPC is an EU institution for the purposes of Article E(2), and whether the requirement in that same provision that Hungary enters such agreements “with other Member States” is sufficiently met in circumstances where only 25 EU Member States have signed the UPCA, and this can come into force through ratification by only 13 Member States.

Should the Court find that Article E is a good legal basis for ratification, the government further queries whether the change to the Hungarian judicial framework operated by the UPCA, which amounts to a delegation of constitutionally protected judicial powers by making the resolution of certain disputes the exclusive jurisdiction of the UPC, would be contrary to Article 25 of the Constitution on the judicial power and court structure. Among the arguments raised by the motion, the UPC’s decisions are not subject to appeal to the Hungarian Supreme Court, which Article 25(3) states is the court responsible for ensuring the uniform application of the law. Also, the motion questions whether the UPC, which would be entitled to apply Hungarian law under Article 24 UPCA, would be effectively bound by the interpretation of that law by the Hungarian courts as the latter would not able to review the decisions of the UPC.

In the event the Court concludes that Article E is not a good legal basis for ratification of the UPCA, the motion requests the Court to set out what conditions must be met for its ratification under the general provision allowing Hungary to enter international agreements in Article Q of the Constitution. The motion notes that Article Q requires that international agreements are ratified by a law of the parliament, but does not make any reference to situations where a transfer of sovereignty takes place (such as the inconsistency between the scheme of the UPCA and Article 25 of the Constitution), and questions whether in such a scenario an amendment to the Constitution would be necessary to allow ratification.