Solutions to the Unconstitutionality of the EC-Hungary Antitrust Cooperation Regime: Anti-Trust or Antitrust Cooperation?

6 Colum. J. Eur. L. 321 (2000)

János Volkai. Ph.D. Candidate, European University Institute, Florence (Thesis Title: The Present and Future Application of Community Antitrust Law in Hungary). Administrator, Competition Law and Policy Division, OECD, Paris (

Veri Juris – Nous n’en avons plus:
si nous en avions, nous ne prendrions pas
pour règle de justice de suivre les moeurs de son pays.
C’est là que ne pouvant trouver le juste, on a trouvé le fort, etc.
(B. PASCAL, PENSEES 121 (1936), point 235)


On the basis of a submission by a Hungarian citizen, in Judgment No. 30 of June 25, 1998 (Europe Agreement Judgment) the Hungarian Constitutional Court exercised constitutional control over the European Communities (EC) – Hungary antitrust cooperation regime. The regime comprises Article 62 of the Europe Agreement concluded between Hungary and the EC, including its Member States, (Europe Agreement/EA) and the Implementing Rules (current Implementing Rules/IR) adopted by an Association Council Decision (AC Decision) on the basis of Article 62(3) of the Europe Agreement. The Hungarian Constitutional Court’s analysis also extended to Hungarian Act No. I of 1994 and Hungarian Government Decree No. 230 of December 26, 1996, which transposed the Europe Agreement and its Implementing Rules into the dualist Hungarian legal system. As a result of elaborate analysis, on June 25, 1998, in the aforementioned Europe Agreement Judgement the Hungarian Constitutional Court declared the first two provisions of Article I as well as Article 6 of the Annex to Hungarian Government Decree No. 230 of December 26, 1996 unconstitutional, but suspended taking a decision on the annulment of those provisions until December 31, 1999.

The Europe Agreement Judgment and its implications for Hungary have already been analyzed on earlier occasions. However, few of these scholarly analyses proposed a detailed solution to the problem posed by the unconstitutionality of the antitrust cooperation regime.

This article intends to fill that vacuum. It proposes a detailed solution to the matter by taking into account the legal and political requirements and limitations of both the European Union (EU) and Hungary. After all, the Hungarian Constitutional Court’s December 31, 1999 deadline for solving the matter has expired without resolution.

Prior to elaborating on the detailed proposal, this article will address several issues. Part II provides a summary of the conclusions of the Europe Agreement Judgment of the Hungarian Constitutional Court. Part III briefly analyzes the possible alternatives laid down by the Hungarian Constitutional Court in the Europe Agreement Judgment and in another, earlier judgment on certain preliminary issues of competence (Preliminary Issues Judgment). Part IV analyzes the Common Proposal adopted by the Hungarian Ministry of Justice and Ministry of Foreign Affairs after the delivery of the Europe Agreement Judgment.

Drawing from the lessons of that proposal and expert commentary upon it, Part V proposes a detailed solution to solve the constitutional problem and to clarify some uncertainties raised by the current Implementing Rules. Moreover, it analyzes the advantages and disadvantages of such a detailed solution from both a theoretical and a practical viewpoint. Part VI concludes by describing the conceivable legal and political consequences of the proposed detailed solution for Hungary, the European Union and Central and East European Countries (CEECs) associated with the European Union, and draws general lessons from the saga that the EC-Hungary antitrust cooperation regime has undergone.