5.  The applicant was born in 1939 and lives in Vác.
6.  He was awarded a disability pension on 6 May 1995. Since he had accrued service periods in both Hungary and Austria, his pension was established accordingly, both under the Act no. LXXXI of 1997 on Social Security Pension Benefits (“the 1997 Pensions Act”) and the Social Security Agreement between Hungary and Austria. On 1 May 2004 (the date of Hungary’s accession to the EU) his monthly pension was 74,361 Hungarian forints (HUF) (approximately 250 euros (EUR)).
7.  On 18 April 2006 he requested a review of his pension rights in accordance with Article 94(5) of Regulation 1408/71/EEC of the Council of the European Communities on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community (hereinafter “the Regulation”). The provision stipulated that the rights of a person to whom a pension had been awarded prior to the entry into force of the Regulation could, at the request of the person concerned, be reviewed, taking into account the provisions of the Regulation. With regard to the applicant, the date of “entry into force” was Hungary’s EU accession.
8.  On 1 September 2006 the applicant’s monthly pension was reviewed by the Budapest and Pest County Pensions Board (Fővárosi és Pest Megyei Nyugdíjbiztosítási Igazgatóság), acting as a first-instance pension authority. The applicant’s pension was increased to HUF 134,566 (approximately EUR 449) per month with effect from 1 May 2004.
9.  On 7 September 2006 the applicant appealed against that decision, because the pension authority had calculated an overlap period (during which he had worked in Austria but had also had to pay social security contributions in Hungary) as a mere Hungarian service period with a very low average salary.
10.  Despite the appeal, the decision was implemented with immediate effect and the applicant received HUF 1,996,104 (approximately EUR 6,650) in arrears.
11.  On 16 January 2007 the Central Hungary Regional Pensions Board (Közép-Magyarországi Regionális Nyugdíjbiztosítási Igazgatóság), acting as a second-instance pension authority, increased the applicant’s monthly pension to HUF 135,450 (approximately EUR 452) with effect from 1 May 2004. For the period 1 May 2004 to 28 February 2007 he received a total of HUF 42,065 (approximately EUR 140) in arrears and interest.
12.  The applicant challenged the final administrative decision in court and requested that a question concerning the correct interpretation of the Regulation be referred to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling.
13.  On 12 October 2007 the Budapest Labour Court dismissed the applicant’s action and upheld the pension authority’s decision.
14.  The applicant lodged a petition with the Supreme Court for review of the Budapest Labour Court’s judgment. On 6 March 2009, in the review proceedings, he submitted written pleadings to the Supreme Court.
The pleadings were not submitted to the Court in the present proceedings and the parties’ submissions differed as to the content of the document containing them. According to the Government, the applicant withdrew his request for a preliminary ruling on that date, whereas the applicant alleged that he had only submitted that the reference to the CJEU was not necessarily inevitable, provided that his interpretation of EU case-law was followed. However, in his view, this did not amount to a withdrawal of the request for a reference for a preliminary ruling.
15.  On 3 June 2009 the Supreme Court reversed the Budapest Labour Court’s judgment and ordered new proceedings, insisting that the EU law principle concerning the prevention of overlapping of benefits be taken into account.
In response to the applicant’s request for a reference for a preliminary ruling, the Supreme Court held that the procedure appeared to be unnecessary “because the conditions had not been fulfilled”.
16.  In the case remitted to it, the Labour Court quashed the decision of the pension authority and instructed it to recalculate the applicant’s pension in accordance with EU rules (without counting the overlap period as a mere Hungarian service period). The judgment became final on 19 March 2010.
17.  On 7 July 2010 the Central Hungary Regional Pensions Board adopted a new decision in accordance with the instructions of the Budapest Labour Court and increased the applicant’s monthly pension to HUF 139,545 (approximately EUR 465) with effect from 1 May 2004. The decision ordered the payment, in arrears, of the difference between the pension due and the amount already paid.
The 1997 Pensions Act provides that if a pension authority has made a mistake to the detriment of an applicant, the difference is to be paid for only the last five years preceding the date the mistake was discovered (the duration of the statutory limitation period). Payment of the difference was therefore ordered for the period after 19 March 2005 only (namely from the date exactly five years before the date on which the Labour Court’s judgment became final, see paragraph 16 above). The amount paid to the applicant in arrears and interest was HUF 581,515 (approximately EUR 1,940).
18.  On 23 July 2010 the applicant appealed against the decision, claiming the arrears for the whole period following Hungary’s EU accession.
19.  On 11 November 2010 the Pension Appeals Board (Nyugdíjbiztosítási Jogorvoslati Igazgatóság) amended the decision of 7 July 2010 (see paragraph 17 above), reduced the applicant’s monthly pension to HUF 138,170 (approximately EUR 460) with effect from 1 May 2004, but limited payment to the period following 19 March 2005.
20.  The Appeals Department of the National Pensions Administration (Országos Nyugdíjbiztosítási Főigazgatóság Jogorvoslati Főosztály) conducted a repeated second-instance review and, in a decision dated 5 November 2011, amended the decision of 11 November 2010 (see paragraph 19 above). It increased the applicant’s monthly pension to HUF 139,605 (approximately EUR 465) with effect from 1 May 2004, retaining however the limitation of payment as regards the period preceding 19 March 2005.
21.  The applicant requested a court review of the pension authority’s decision of 7 July 2010, as amended by the decisions of 11 November 2010 and 5 November 2011. He relied on Article 94(6) of the Regulation.
22.  On 29 February 2012 the Budapest Labour Court upheld the pension authority’s decisions (see paragraphs 17, 19 and 20 above).
23.  On 22 March 2012 the applicant submitted a petition for review of the Budapest Labour Court’s judgment. He argued that domestic law was to be interpreted and applied in conformity with EU law, of which the relevant provision, Article 94(6) of the Regulation, was directly applicable and had direct effect in the case. He contended, in essence, that he had a right, as acknowledged in the decisions of the pension authority, to an adjusted pension for the whole period following 1 May 2004. The national rule restricting the very payment of that pension to a shorter period of time constituted a “limitation of rights” prohibited by the Regulation. He was of the opinion that the Budapest Labour Court’s judgment, in giving precedence to the rule of national law over the relevant provision of the Regulation, had violated the principles of primacy and effectiveness of EU law.
In his petition for review, the applicant did not request that the case be referred to the CJEU for a preliminary ruling; instead, he requested what he considered to be a correct application of Article 94(6) of the Regulation. Nevertheless, he argued that the Budapest Labour Court’s judgment had violated Article 234 of the Treaty Establishing the European Community (“EC Treaty”, now Article 267 of the Treaty on the Functioning of the European Union (“TFEU”)), without providing a detailed explanation on this point.
24.  On 26 June 2013 the Kúria upheld the judgment of the Budapest Labour Court.
Both the Budapest Labour Court and the Kúria reasoned that the Regulation concerned only the acquisition of rights but not the actual payment of allowances. In the courts’ view, the applicant had indeed acquired a right to an amended pension from 1 May 2004 and his rights in this regard were not subject to any forfeiture or limitation; it was only the actual payment of the increased amount which had been limited. In the courts’ opinion, therefore, the relevant provisions of the 1997 Pensions Act and those of the Regulation did not conflict.
As regards the applicant’s argument concerning the alleged violation of Article 234 of the EC Treaty, the Kúria’s judgment did not contain any reasoning.
25.  In parallel to the litigation described above, on 2 February 2008 the applicant lodged a petition with the Constitutional Court, arguing that the rules of the 1997 Pensions Act were in conflict with EU law. On 4 October 2010 the court rejected the petition, stating that it lacked competence to examine an alleged conflict between Hungarian and EU law (see decision no. 126/E/2008 of the Constitutional Court).
26.  The relevant part of Article XXVIII of the Fundamental Law of Hungary provides:
“(1)  Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.
...”
27.  Section 80(1) of the 1997 Pensions Act provides as follows:
“If, following the examination of a pension request, it turns out that the pension authority violated the applicable law and ... the pension established or disbursed was therefore unduly low, then the arrears and ... interest shall be paid for the five-year period preceding the establishment of the violation.”
28.  The relevant provisions of the Code of Civil Procedure (Act no. III of 1952), as in force at the material time, provided as follows:
Article 155/A
“(1)  The court may request the [CJEU] for a preliminary ruling in accordance with the rules laid down in the Treaty establishing the European Community.
(2)  The court shall make a reference for a preliminary ruling by order (végzés) and shall [simultaneously] stay the proceedings. In the order, the court shall specify the question for which a preliminary ruling is requested and describe the circumstances of the case and the relevant domestic law inasmuch as it is necessary for answering the question referred to the [CJEU]. The order shall be notified to the [CJEU] and, for information, to the Minister in charge of justice at the same time.
(3)  No appeal lies against a court decision making a reference for a preliminary ruling or dismissing a request for a reference for a preliminary ruling.”
Article 272
“(2)  The petition for review shall specify the decision that is the subject thereof and the substance of the decision requested; furthermore, it shall set out the alleged infringement, specify the legal provision that has been breached and explain the reasons why the impugned decision requires modification.”
Article 275
“(2)  The Kúria may review a final decision only within the framework of the petition for review ... unless it decides to dismiss the action of its own motion, or if the court that rendered the decision had not been properly formed, or if a judge who should have been disqualified by law took part in rendering the decision.”
29.  In leading case no. BH 2015.7.203 the Kúria held as follows:
“A petition for review does not meet the requirements [of the Code of Civil Procedure] if, for the purposes of the specification of the infringement, it contains only a general reference to [certain] Chapters ... of the Code of Civil Procedure. The petition for review cannot be examined on the merits if the party specifies the infringed legal provision but does not provide any reasoning in that connection.”
30.  In leading case no. BH 2016.12.342 the Kúria held, in so far as relevant:
“A petition for review may only be examined on the merits if[, in addition to a pure reference to the allegedly violated legal provision,] the petitioning party also describes the substance of the infringement, explains his or her legal opinion thereon and sets out the reasons supporting his or her argument.”
31.  In leading case no. BH 1995.2.99 the Kúria held, in so far as relevant:
“The petition for review must specify the alleged infringement concretely; it is not sufficient to refer to previous submissions.
...
[The petitioning party] did not set out the reasons on which he relied in challenging the final judgment; he only referred to the content of his appeal [against the first-instance judgment]. However, the petition for review is an independent, extraordinary remedy[. Given] its special nature, references to previous submissions are not accepted.”
32.  Section 46(1) of the Constitutional Court Act (Act no. CLI of 2011) provides as follows:
“If the Constitutional Court, in proceedings conducted by it in the exercise of its competences, declares an omission on the part of the legislature that results in a violation of the Fundamental Law, it shall call upon the organ responsible for the omission to take action and set a time-limit for that.”
33.  The relevant parts of the Constitutional Court’s decision no. 7/2013 (III.1) AB of 1 March 2013 read as follows:
“[26]  The Fundamental Law of Hungary, having entered into force in January 2012, imposes on the Constitutional Court the ... task of reviewing the conformity of judicial decisions with the Fundamental Law. In accordance with Article 24 (2) (d) of the Fundamental Law and section 27 of the Constitutional Court Act, the Constitutional Court bears ultimate responsibility for ensuring judicial decisions’ conformity with the Fundamental Law. In determining whether a judicial decision is or is not in conformity with the Fundamental Law, the Constitutional Court actually acts in order to redress a violation of a right enshrined under the Fundamental Law, hence it acts in protection of the Fundamental Law ...
...
[30]  In its decision no. 61/2011 (VII.13) AB the Constitutional Court took the principled stance that “in the case of certain fundamental rights, the Constitution specifies the substance of a fundamental right in the same way as international instruments (for example the Covenant on Civil and Political Rights or the European Convention on Human Rights) do. In such cases, the level of protection to be afforded by the Constitutional Court to the fundamental right should in no way be lower than the level of international protection afforded to the given right (typically by the European Court of Human Rights in Strasbourg)” ... Based on this consideration, the Constitutional Court has reviewed the case-law of the [European] Court [of Human Rights] on the right to a reasoned court decision, which it also finds applicable in interpreting the right enshrined in Article XXVIII (1) of the Fundamental Law.
...
[33]  3. The right to a reasoned court decision ... arises in the context of the constitutional requirement of a fair trial, specified in Article XXVIII (1) of the Fundamental Law. ... The Constitutional Court is to examine whether the procedural laws prescribing the duty of giving reasons were or were not applied in conformity with the requirements set forth in Article XXVIII (1) of the Fundamental Law ...
[34]  ...The constitutional requirement of giving reasons, being examined by the Constitutional Court, is inherent in Article XXVIII (1) of the Fundamental Law and determines the limits of the courts’ margin of appreciation, notably by requiring courts to give reasons for their decisions, in conformity with the procedural laws. The constitutional violation of the duty to give reasons means the application of this procedural rule is not in conformity with the Fundamental Law ... The constitutional requirement of a fair trial demands, as a minimum, that the courts should, with due care, examine the parties’ observations made on the relevant parts of the case and should include an assessment of those observations in their decisions ...
...
[40]  In the light of the above considerations, the Constitutional Court finds, on the merits, that the high court ... examined the questions ... concerning the relevant circumstances of the case and gave appropriate reasons as regards its conclusions.
[41]  The Constitutional Court therefore dismisses this part of the constitutional complaint.”
34.  In a complaint adjudicated by the Constitutional Court on 19 May 2014 (decision no. 3165/2014 (V. 23) AB), the complainant argued that the Kúria had failed to comply with its obligation to refer a question on the interpretation of EU law to the CJEU for a preliminary ruling and to provide adequate reasons for its decision not to do so (see paragraph 5 of the decision).
The Constitutional Court held that the competence to decide whether a reference for a preliminary ruling was necessary in the circumstances was vested solely in the judge hearing the particular case and the Constitutional Court lacked jurisdiction to overrule such decisions. It rejected the complaint as inadmissible and did not address the issue of adequate reasoning.
35.  On 14 July 2015 (decision no. 26/2015 (VII. 21) AB) the Constitutional Court examined a complaint regarding a final judgment of the Budapest High Court concerning its failure to refer a question to the CJEU for a preliminary ruling and to provide reasons for its decision not to do so.
Following an analysis of the CJEU’s relevant case-law, the Constitutional Court found that, in the case at issue, the question proposed by the claimant related to the qualification and interpretation of domestic law (which, in the claimant’s view, contradicted EU law), rather than to the interpretation of the applicable EU law provision itself. In these circumstances, the Constitutional Court shared the Budapest High Court’s opinion that there had been no need for a reference for a preliminary ruling.
It observed that, in accordance with the Code of Civil Procedure as in force at the relevant time, the courts were not required to give reasons for not making a reference to the CJEU. It held that such a situation – that is to say, if the courts did not adopt a formal decision complete with reasons when they refused to refer a question to the CJEU for a preliminary ruling – violated parties’ rights to a fair trial. Accordingly, it declared that there had been an omission on the part of the legislature resulting in a violation of the Fundamental Law (see paragraph 32 above), and invited Parliament to amend the relevant legislation by 31 December 2015.
However, the Constitutional Court’s decision did not find the Budapest High Court’s particular judgment unconstitutional on account of the court’s failure to provide reasons for the non-referral – indeed, it did not contain any arguments related to the lack of reasons in that particular judgment.
36.  In accordance with the Constitutional Court’s decision no. 26/2015, Article 155/A (2) of the Code of Civil Procedure (see paragraph 28 above) was amended as of 4 December 2015 with the following additional wording:
“If the court dismisses a request for a reference for a preliminary ruling, it shall formulate its decision in the form of an order (végzés). The court is obliged to give reasons for that decision, by the latest in its decision on the merits that concludes the proceedings.”
37.  In decision no. 3082/2016 (IV. 18) AB adopted on 12 April 2016 the Constitutional Court noted obiter dictum, in connection with a particular case, that the court hearing the case at issue had observed its obligation to provide reasons for not making a reference to the CJEU.
38.  The relevant part of Article 267 of the TFEU[1] provides:
“The [CJEU] shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. ...”
39.  In applying that provision, the CJEU has held that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of interpretation of EU law (rather than a question relating to the validity of a Community act, see the judgment in Gaston Schul Douane-expediteur BV v. Minister van Landbouw, Natuur en Voedselkwaliteit, C-461/03, judgment of 6 December 2005, ECR I-10513, § 19) is raised before it, to comply with its obligation to bring the matter before the CJEU, unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the CJEU (acte éclairé) or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (acte clair). The CJEU has also held that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the EU (see Srl Cilfit and Lanificio di Gavardo SpA v. Ministry of Health, 283/81, judgment of 6 October 1982, ECR 3415, § 21, and X v. Inspecteur van Rijksbelastingdienst and T.A. van Dijk v. Staatssecretaris van Financiën, joined cases C-72/14 and C‑197/14, judgment of 9 September 2015, § 55). With that proviso, the CJEU also held that it was for the national courts against whose decisions there was no judicial remedy under national law, to take responsibility upon themselves independently for determining whether the case before them involves an acte clair (see X and van Dijk, cited above, § 59).
40.  As regards the specific characteristics of EU law, the CJEU emphasised, among other aspects, that EU law used terminology which was unique to it and that the legal concepts did not necessarily have the same meaning in EU law as in the law of the various member States. It also stressed that every provision of EU law must be placed into context and interpreted in the light of the provisions of EU law as a whole, having regard to the objectives thereof and to its state of evolution at the date on which the provision in question was to be applied (see Cilfit, cited above, §§ 19 and 20).
41.  The CJEU also defined the meaning of the expression “where any such question is raised” contained in the third paragraph of Article 267 of the TFEU (see Cilfit, cited above, §§ 8-9). It later summarised its settled case-law on this point as follows (see Belgische Petroleum Unie VZW and Others v. Belgische Staat, C-26/11, judgment of 31 January 2013, §§ 23‑24):
“23.  ... [I]t should be borne in mind that the fact that the parties to the main action did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the [CJEU]. In providing that a request for a preliminary ruling may be submitted to the [CJEU] where ‘a question is raised before any court or tribunal of a member state’, the second and third paragraphs of Article 267 TFEU are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of European Union law, but also extend to cases where a question of this kind is raised by the court or tribunal itself, which considers that a decision thereon by the [CJEU] is ‘necessary to enable it to give judgment’ ... 24.  Moreover, according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.”
The CJEU further held, in the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, judgment of 15 March 2017, § 43), that:
“[i]t follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment.”
42.  Article 94(6) of the Regulation 1408/71/EEC of the Council of the European Communities on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community, as in force until 1 May 2010, provided as follows:
“If an application referred to in paragraph 4 or 5 [in particular, an application for the review of a pension awarded prior to the entry into force of this Regulation] is submitted within two years from the date of entry into force of this Regulation, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.”
It appears that the interpretation of that provision has so far not been the subject of a preliminary ruling of the CJEU.[2]