Following sustained and serious failures of checks and balances, the rule of law, and the broader liberal constitutional order in Hungary, the European Commission suspended funding across multiple budgetary instruments on the basis of rule of law conditionality standards applicable under EU primary and secondary law. Now, following the landslide victory of the Hungarian Tisza Party on 12 April 2026 with a constituent supermajority, there is considerable academic discussion about the prospect of a new constitution (see scholarship in Hungarian here and in English here) and the revival of the rule of law. Following a controversial episode in the appointment process, a new Minister of Justice, Márta Görög, has since been appointed. She has indicated that she will initiate a broad participatory process of constitution-making. This, however, will take time, and the tasks confronting the new government are immense while the pressures upon it are acute.
The European Commission holds at least €18 billion in frozen funds, conditional on Hungary meeting e.g. 27 rule of law milestones by August 2026. Negotiations are ongoing between Brussels and Budapest as to how those conditions are to be met.
Meanwhile, Prime Minister Péter Magyar has publicly already called twice upon several holders of the highest state offices — including the President of the Republic and the President of the Constitutional Court — to step down voluntarily, threatening to effect their removal through the constituent supermajority if they do not step down by 31 May.
The Parliament is also currently considering a small draft to amend the Fundamental Law of Hungary to introduce term limits for the Prime Minister.
A timely reform of the current constitutional framework is thus unavoidable — but the manner and scope of such reform remain contested. The rule of law system of constitutional checks and balances must be restructured to allow the new government and parliament to function effectively, and certain provisions require alignment with European values. There is no compelling case for an immediate total constitutional revision of the kind undertaken in 1989 following the fall of the Iron Curtain. However, there is a strong argument to be made for a meaningful constitutional repair through targeted amendments and supplementary provisions. The overarching aim of such an undertaking would be to restore liberal constitutional values, principally by returning to the rule of law.
Based on Sieyès’ foundational distinction between pouvoir constituant originaire and pouvoir constituant dérivé, the supermajority may exercise only the latter: it may amend, or revise the constitution, but only within and through the existing legal order, not beyond it. Absent a revolutionary break, the Fundamental Law nonetheless remains the operative framework that legitimates both the elections and the current government, notwithstanding its prior misuse by an illiberal supermajority. Under the principle of the paradoxical revolution through the rule of law — by which the early Constitutional Court framed the transition from communist rule to democratic statehood — no change is possible that would wholly reverse the existing legal order.
While the CJEU would most likely resolve this tension through a proportionality review, this blog post focuses on the more contested and analytically underexplored question of whether transitional constitutional provisions adopted in pursuit of Article 2 TEU compliance may themselves temporarily claim protection under national constitutional identity as guaranteed by Article 4(2) TEU — a structural inversion of the conventional identity claim that existing case law does not clearly resolve. That interpretive openness is further compounded by the unresolved competence conflict between the CJEU and national constitutional courts, most prominently the Bundesverfassungsgericht, over who holds ultimate authority to define the content of constitutional identity under Article 4(2) TEU.
The Institutional Reorganisation
In the months preceding the Hungarian national election, the then-ruling government executed a precise pre-emptive manoeuvre: it installed loyalists across the highest state offices. A new President and a new judge were elected to the Constitutional Court; a new Prosecutor General was appointed; and a former President of the Constitutional Court was installed as Commissioner for Fundamental Rights.
The result is a complete ring of Fidesz-appointed actors. Magyar must now clear the path for the Hungarian legislative process in order to secure his reform agenda — in particular, compliance with the Commission’s 27 benchmarks, which measure substantive outputs such as anti-corruption track records, judicial salary structures, and media ownership rules.
Péter Magyar must reorganise and rebalance the institutional architecture established by the Fundamental Law in order to produce effective and enforceable legislation. Specific constitutional amendments are therefore required.
Possible Amendments
As already noted, Magyar can amend the Fundamental Law to reduce the terms of Constitutional Court members from twelve to eight years and introduce a mandatory retirement age — perhaps set at 65, aligned with the ordinary judiciary.
He may introduce transitional provisions to alter the procedure for electing the President of the Republic. He may restore the office of Commissioner for Fundamental Rights to its original form as three separate parliamentary commissioners — one for civil rights, one for the protection of the interests of future generations, and one for the protection of the rights of national minorities — redistributing the current officeholders’ responsibilities accordingly. He may also revive the former Supreme Court of Justice as a separate apex court, thereby displacing the current President of the Kúria.
All of this institutional restructuring through constitutional amendment maybe permissible under the Fundamental Law and the case law of the Constitutional Court with the clear objective to reinstall the rule of law.
The rule of law in Hungary was systematically weakened after Orbán assumed office for the second time in 2010. Under his direction, a series of measures was adopted to neutralise the Constitutional Court and eliminate it as a countervailing constitutional force. This process began with the restriction of constitutional review in fiscal and tax matters and reached a critical juncture with the Fourth Amendment to the Fundamental Law, which confined the Court to reviewing constitutional amendments on procedural grounds only. The process continued with successive amendments designed to override and nullify prior decisions of the Constitutional Court. In total, Orbán amended the Fundamental Law fifteen times, frequently for immediate partisan political purposes.
The Rule of Law and European Law
There are, however, at least three significant legal constraints that must be taken into account.
First, the affected officeholders may possess individual rights under employment law. In 2012, the EU Court of Justice ruled in Commission v Hungary (C-286/12, paras 68–81) that the abrupt reduction of the judicial retirement age from 70 to 62 violated Council Directive 2000/78 on equal treatment in employment — not because changing retirement ages is impermissible in principle, but because the transition was disproportionately abrupt and judges had well-founded expectations of serving until the previously applicable age. It is, however, questionable whether this Directive applies to persons appointed for a fixed term, such as the President of the Republic or the President of the Constitutional Court.
Second, legislative acts terminating an officeholder’s mandate ad hominem — that is, measures targeted at a specific individual rather than establishing a rule of general application — may be characterised as discriminatory and fail the requirement of generality inherent in the rule of law. Such measures would, moreover, be susceptible to challenge before the European Court of Human Rights (paras 107–122) as contrary to the right to a fair trial under Article 6(1) of the European Convention on Human Rights. The Presidents of the Constitutional Court, the Kúria, and analogous institutions should at minimum retain their ordinary mandates as members of the respective court, with the right to challenge any decision removing them from their primary function. The case of the President of the Republic is more delicate: terminating his office by constitutional amendment, without accompanying institutional reform — such as a transition to direct popular election — would engage the principle of legal certainty.
Third, as already noted elsewhere and above, following the Court of Justice’s recent ruling of 21 April regarding Hungary’s child protection law (C-769/22, paras 553–555), the rule of law argument under Article 2 TEU remains analytically incomplete.
The Court subordinated national identity defence in a single sentence to the values enshrined in Article 2 (para 562). The weakness of this ruling lies precisely in its lack of consistent deliberation on a sensitive normative question. By failing to engage with Article 4(2) TEU — which stands at the same level of primary law as Article 2 TEU — the Court’s reasoning in this respect is insufficiently transparent.
Where a constitutional repair encompasses multiple provisions with the aim of reorganising the checks and balances of the Fundamental Law and the existing institutional system — thereby initiating what may fairly be called a “constitutional moment” — it cannot, despite its constitutionally disruptive character, be regarded as an instrument of ordinary political action
Hungary’s constitutional history lends particular weight to this conclusion. Constitutional disruption and deliberate normative ambiguity have recurred as structuring features throughout Hungarian constitutional history: the liberal April Laws of 1848 and the failed attempt to establish a modern Hungarian state; the Austro-Hungarian Compromise of 1867, which restored Hungarian statehood but under Habsburg leadership; the Aster Revolution of 1918, when the Habsburg King withdrew from governing Hungary without formally abdicating; the Hungarian Soviet Republic of 1919 as a very short episode; the Counter-Revolution of 1920 under Admiral Horthy, elected regent of a void monarchy; the German occupation of 1944 and the unprecedented rapidity of the deportation and murder of virtually the entire Jewish population of rural Hungary; the provisional republican constitution of 1946, adopted with the unfulfilled intention of being replaced by a comprehensive constitutional text; the Soviet-modelled constitution of 1949, which nevertheless did not wholly eradicate the pre-existing Hungarian legal system; its total constitutional revision of 1989 following the fall of the Iron Curtain, negotiated by the Round Table and carried out without enacting an entirely new foundational text; and the Fundamental Law of 2011, which claimed to restore the constitutional continuity interrupted in 1944, deliberately bypassing the constitutional moment of 1946 and the Round Table agreements of 1989.
Hungary has one of the oldest constitutional traditions in Europe — and has never once settled what that constitution actually means. Disruption and ambiguity are not flaws in the system. They may be the system´s mode of survival.
One may therefore hypothesise that a “constitutional moment” of sufficient democratic legitimacy and institutional scope falls within the acquis of Hungary’s historical constitution — as expressly invoked in the National Avowal and Article R of the Fundamental Law — and may, on that basis, constitute a protected element of national constitutional identity within the meaning of Article 4(2) TEU. This hypothesis is advanced with full awareness of the substantial scholarly criticism the concept has attracted, here and here, and without endorsing the uses to which it has previously been put. The historical constitution is invoked here not as a source of normative glorification but as a transmitter: evidence of where Hungary has come from, and therefore of what it now owes itself.
However, instruments have their moment of use, and that moment is now closing. A nation that has inhabited the Carpathian basin for thousand years, Hungary must now determine – through a process of genuine democratic legitimacy – to which community of values it irrevocably belongs, on what constitutional terms it will live with its neighbours and under what constitutional framework it commits to govern itself.
Within this interpretive framework, the Hungarian notion of the rule of law is necessarily distinct from other continental approaches — including, for example, the more positivist tradition in Germany. On this basis, national measures may nonetheless be suitable to protect the asserted national identity interest — by restoring rule of law principles necessary for that purpose — and proportionate in light of the Article 2 TEU values at stake.
Accordingly, a coherent and sustained roadmap with clear milestones to a new constitution is required for the long-term consolidation of the rule of law within any process of constitutional reorganisation.
The Unfinished Liberal and Democratic Transition: Two Failure Modes — and a Third and Last Opportunity
The Hungarian Constitutional Court was established in 1990 as the centrepiece of the democratic transition from communism. Under its first President, László Sólyom, it became the most activist constitutional court in the world during its first decade, invalidating more than 100 parliamentary acts. As this author documented, the Hungarian Constitutional Court operated in a procedural and substantive vacuum — Hungarian procedural law was extraordinarily weak, and the 1949/89 constitution was merely transitional. Sólyom filled that vacuum neither with codified procedure nor with interpretation consistently anchored in the wording of the constitutional text, but with what he termed the “invisible constitution”: an unwritten framework of moral and constitutional values derived from first principles.
This was intellectually formidable. It was also potentially fatal to the very democracy it sought to protect. Sólyom’s Court resolved politically charged questions — abolishing capital punishment against the wishes of two-thirds of the population, blocking lustration and retroactive justice for communist perpetrators — through legal technicality rather than democratic deliberation. Questions that required public reckoning were removed from the political sphere entirely and decided by a liberal constitutional elite operating behind an invisible constitution that the population had never endorsed and could not challenge.
The resentments this left unaddressed became Orbán’s raw material. The Court that Sólyom built as a guardian of the European constitutional commonwealth was progressively reduced to a captured institution, its majority systematically packed with loyalists serving twelve-year mandates. Orbán’s Fourth Amendment of 2013 completed the demolition by annulling the Court’s prior decisions.
A Third and Last Opportunity
Magyar took office on 9 May — Europe Day. The symbolism was impeccable. But within days of his election victory, two actions revealed a pattern that should give the Commission serious pause.
On election night and in his inauguration speech, Magyar issued a public ultimatum: “Until 31 May, the Orbán puppets may voluntarily step down from their positions.” All institutions immediately responded that they would continue to operate in accordance with current legislation.
Magyar proposed his brother-in-law, Márton Melléthei-Barna — a genuinely accomplished lawyer, Freshfields alumnus and Tisza founding member — as Minister of Justice, the portfolio specifically responsible for rule of law restoration and unlocking EU funds. Ultimately, Márton Melléthei-Barna withdrew his acceptance of the appointment.
Neither decision is straightforwardly wrong. The frustration behind the ultimatum is entirely legitimate — these are institutions that were systematically captured over the last sixteen years. Melléthei-Barna’s professional credentials are strong. But both decisions share a deeper logic that must be addressed precisely because it mirrors Orbán’s own institutional philosophy: institutions derive their legitimacy from the government of the day, not from the constitutional order they serve. Magyar must not treat constitutional offices as personal appointments, to be vacated on demand, nor treat personal loyalty as the primary criterion for institutional responsibility. This is not rule of law thinking.
Hungary has now cycled through two distinct failure modes. Sólyom’s invisible constitutionalism: principled, but democratically unaccountable, resolving political questions through legal technicality. Orbán’s visible majoritarianism: dismantling institutional independence through raw parliamentary power. Magyar must now avoid a third: personalism — treating constitutional offices as extensions of political loyalty rather than as independent constitutional functions.
What Hungary needs is a constitutional framework that is simultaneously transparent, procedurally robust, democratically accountable, and institutionally independent.
Not invisible.
Not majoritarian.
Not personal.
Measurable, final — and taking honour as a constitutional value in itself.
What Must the European Commission Do?
Does the Commission have unfinished business in this regard? Article 2 TEU has been developed exclusively as a reactive enforcement instrument — a tool to sanction governments that violate rule of law values. The entire conditionality framework assumes a binary: violation or non-violation. It will be difficult to operationalise it as a positive constitutional obligation — requiring transitional governments to rebuild institutional independence durably, transparently, and measurably — without creating a European elitist “superconstitution”.
The Commission should be acutely aware of this dilemma as it applies rule of law conditions to Magyar’s government as preconditions for the progressive release of funds.
First, institutional conduct standards may provide guidance. Governments must engage with independent constitutional institutions through established legal procedures. The constitutional moment must be taken into account: where rapid constitutional repair is necessary, there must nonetheless be a clear roadmap for how the new constitutional architecture is to be developed. Removing officeholders merely to displace political opponents is insufficient; structural institutional reform is what the rule of law demands.
Second, structural independence benchmarks. The Commission must measure whether institutional architecture is being rebuilt to operate independently of the governing party — not merely independently of the previous one. Magyar’s constitutional amendment route — immune from substantive review under Orbán’s own Fourth Amendment — provides the legal instrument. The Commission’s conditionality framework must supply the measurable standards against which its use is assessed.
The Lesson of Sólyom’s Legacy
Sólyom — the founding father of Hungary’s liberal constitutional order — had to watch helplessly as the resentments that his principled restraint left unresolved were weaponised to destroy everything he had built.
The Commission risks a different version of the same error. By measuring only whether violations stop — not whether institutional independence is being rebuilt on transparent, accountable foundations — it may release €18 billion against a democratic transition that is genuine in intent but reproduces in method the personalised institutional logic it was elected to reverse.
Europe Day was the right moment to take office. August 2026 is the right deadline to demand something more than the mere absence of Orbán. It is the right moment to require the presence of genuinely liberal and independent institutions and an irrevocable start of a process of a final constitutional settlement. One thousand years of presence in the Carpathian basin demands, at last, one clear and final constitutional and fundamental framework.