As Péter Magyar and his new Tisza government took office on 9 May, ending sixteen long years of autocratic capture in Hungary, the crowds outside the Parliament danced and cheered. The new parliamentarians sang the European Anthem while the European flag was once again raised on the Parliament building. Now the new government under Prime Minister Magyar has a constitutional supermajority and a massive democratic mandate. But unlike Orbán’s supermajority, Magyar’s supermajority still has to confront veto players.

The President of Hungary must sign all laws and constitutional amendments for them to enter into force. And President Tamás Sulyok has indicated that he believes “the rule of law” (something he was not too picky about before now) means that the formal rules must be followed. Nothing becomes law without his signature – including constitutional amendments – and, as a Fidesz ally, he has suddenly become a convert to the principle of checks and balances. Amendments to the law on the presidency made in December 2025 made it nearly impossible for the Parliament to impeach the president so the obvious lawful route to removing him has been put out of reach.

Other veto points lurk beyond that. The Constitutional Court has been packed with Fidesz loyalists and they stand ready to declare unconstitutional any change to the current order. While the power to veto the substance of constitutional amendments was removed from the Constitutional Court in 2013 (though it may still review amendments for procedural flaws in their enactment), the power to declare laws unconstitutional remains in the hands of this Court. The Supreme Court (Kúria) is led by a president with extraordinary powers who has deployed them in the service of the Orbán government.

Joint control over the presidency and the peak courts therefore establishes a Fidesz wall of resistance to the dismantling of the NER, the System of National Cooperation entrenched under Orbán. And that doesn’t yet take into account Orbán’s minions who still control virtually all key government offices that would be necessary to enforce a radically new government program.

Péter Magyar understands the challenges of removing state officials with long terms of office who are supposed to be independent of government. He has therefore called for the national president, the presidents of the Supreme Court and Constitutional Court, the Prosecutor General, chief media regulator and others to step down, urging them to recognize the democratic will of the new government. So far none have resigned. It appears that Magyar will be in the unenviable position of either having to govern alongside those determined to block his electoral mandate or finding a way to remove them with a legal workaround.

What can a leader in such a position do? Magyar could prematurely fire the occupants of these veto points with statutory (and sometimes even constitutional) terms of office, claiming that their initial appointment violated the rule of law because the appointments were made in violation of Article C(2) of the Basic Law that bars anyone from acting “with the aim of . . . exclusively possessing [power].” (Of course, these Fidesz loyalists actually did dismantle constitutional government in Hungary so there is ample evidence of motive.) Alternatively, Magyar could also simply ignore the presidential signature requirement or adverse Constitutional Court decisions and declare that laws and constitutional amendments passed with his constitutional supermajority are valid anyway. Both strategies have their problems, not least with the Venice Commission which has taken a highly formalist stance on other political transitions. In a more legal route, Magyar could convene a constituent assembly outside the existing constitutional order to rewrite the constitution on a clean slate and put it to public referendum, bypassing the veto players. Time, however, is of the essence.

Rumors are swirling around Budapest about what all sides might do in this conflict. Some say that the Magyar government is planning to amend the Constitution to remove the president without his signature while rumors are that Sulyok will refer any such amendment to the Constitutional Court which will then (against its own jurisdictional limitations) declare such an amendment unconstitutional. If either event happens, Hungary would be plunged into the middle of a constitutional crisis.

The Hungarian government, however, has another speedier more lawful option to realize its democratic mandate without lurching into one of these extreme scenarios: Using European law as an interim constitution to evade the roadblocks left in place by the Orbán government.

European Law Over All: An Option for Evading National Veto Players

In its long-standing insistence that EU law has primacy over national law – even national constitutional law – the Court of Justice has created a number of tools that pro-democratic reformers could use to eliminate the veto points within their national legal orders in order to comply with EU law.

First, the ECJ has dealt with obstructionist national courts before. In its Grand Chamber decision in Eurobox Promotion, the ECJ held that decisions of the Romanian Constitutional Court must be disapplied by national authorities when those decisions violate EU law. A direct application of Eurobox to cases in Hungary where the high courts block the enforcement of EU law would allow – and, in fact, require – the new government to set aside obstructive court judgments without waiting for the court to change its mind. For example, the IS case, finding that national judges in Hungary may not be disciplined for referring cases to the ECJ, resulted in the Commission’s insistence that Hungary remove the legal barriers that stood in the way of reference cases. While Orbán government passed the relevant statute to appease the Commission, the case law of the Supreme Court (Kúria) discouraging reference cases persists. Under the Eurobox decision, these cases could and should be disapplied without first requiring the national court to overturn them. Future decisions of the packed Hungarian Constitutional Court that block the implementation of EU law can be similarly disapplied. To reinforce the point, the new government could issue an order stipulating that this is the case to put everyone on notice.

In addition, the ECJ has also addressed the problem of national officials and agencies that refuse to enforce EU law. Their decisions, too, should not have legal effect given their conflicts with EU law. As the ECJ noted in the Garda Síochána case, the obligation to disapply contrary national law applies not only to courts but also to all state officials and it applies to decisions made by bodies other than courts:

38 As the Court has repeatedly held, that duty to disapply national legislation that is contrary to EU law is owed not only by national courts, but also by all organs of the State – including administrative authorities – called upon, within the exercise of their respective powers, to apply EU law . . .

50 It follows from the principle of primacy of EU law, as interpreted by the Court . . . that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.

 If the new Hungarian government now adopts measures to bring national law into alignment with EU law and the national president vetoes this law, leaving in place legal rules that violate EU law, then all other state bodies should set aside not only the offending law, but also the veto that blocks the enforcement of EU law. They should then proceed as if the new law were valid. A presidential veto that stands of the way of enforcing EU law should not have legal force.

And then of course there is the pathbreaking decision of the ECJ in the recent Commission v. Hungary case, finding among other things that Article 2 TEU may operate as a free-standing and legally enforceable principle of EU law. Though (as stated in para. 551),

. . . only manifest and particularly serious breaches of one or more values common to the Member States may give rise to a finding, in the context of an action for failure to fulfil obligations, that there has been a failure by a Member State to fulfil legally binding obligations under Article 2 TEU, . . .

Hungary under sixteen long years of the Orbán government has certainly challenged many of the Article 2 TEU principles – democracy, rule of law and rights. The new government may therefore find appeals to Article 2 TEU helpful as a framework for constitutional change that would bring the country closer to those values. And it would be a framework in which the government could disapply the vetoes that would otherwise block them.

Given this authority in EU law, it may not be necessary to unpack the Constitutional Court, remove the heads of other courts or even remove the national president immediately in order to make substantial changes in Hungary’s legal system. If the holdover loyalists of the Orbán regime persist in obstructing the alignment of Hungarian law with EU law, their vetoes can simply be ignored. Of course, this doesn’t help when it comes to vetoes of laws and constitutional amendments that are not under the European legal umbrella, which is why European law can only provide an interim constitution.

European Law as Interim Constitution

Between decisions of the European Court of Justice and the European Court of Human Rights, in addition to conditions set by the European institutions that must be met for Hungary’s EU funding to be restored, Hungary already has a long to-do list that it must tackle. If Péter Magyar were to prioritize those items, he could rely on the primacy of EU law and the binding effect of ECtHR judgments to accomplish a rewrite-in-practice of some of the worst elements of the Orbán constitutional regime.

First, fighting corruption is one of the highest priorities of the Magyar government, not least because the unfreezing of EU funds depends on establishing a credible anti-corruption framework. Magyar has indicated that Hungary will join the European Public Prosecutor’s Office and has already issued an executive order to this effect. Joining the EPPO would give the Hungarian government a spare set of prosecutors to probe the substantial corruption of the Orbán regime so that Magyar would not have to engage in immediate reform of the national prosecution service, which has persistently avoided investigating Orbán and his inner circle of increasingly wealthy friends. In fact, the EPPO might also investigate the Hungarian prosecution service.

Hungary is also in violation of EU-mandated changes to the judiciary established as part of the freezing of funds under various conditionality regimes. If the EU-mandated changes were actually enforced with regard to judicial independence, they could greatly improve the Supreme Court. For example, the EU had demanded that the Supreme Court regularize a system for the randomized assignment of cases to avoid having politically sensitive cases deliberately assigned to politically friendly judges. The Orbán government passed the relevant law but the Supreme Court has not complied with it. In addition, as mentioned above, the Supreme Court has not abolished the case law binding on the lower courts that discourage them from sending reference cases to the ECJ. The new government should insist that the Court follow the law that was already put in place to respond to EU legal requirements and disapply the cases that don’t. The new government could even announce to the bar, the NGOs and pro-democratic Hungarian judges that it welcomes reference cases.

Could Hungary use European court judgments to replace some of the key players now blocking change? Hungary remains in non-compliance with the Baka judgment of the European Court of Human Rights which found the dismissal of the then-president of the Hungarian Supreme Court to be a violation of his free speech rights since he was fired for criticizing the judicial reforms. If Baka were unlawfully fired in the first place, could he now be reinstated as the president of the Court, requiring the current president to stand aside? (He remains a judge on that court, even if not its president.) If so, he could speed enforcement of reforms at the Supreme Court.

In addition, the ECJ judgment finding that the data protection supervisor had been unlawfully fired early in Orbán’s term might be enforced by reinstating András Jóri, removing the Orbán loyalist who replaced him and who has held the office ever since. A new data protection supervisor could begin to issue opinions, backed by the ECtHR judgment in the Szabó and Vissy case which is also not enforced, dismantling Orbán’s surveillance state.

Putting good people into those offices as a result of enforcing the European courts’ decisions could begin to roll back the changes that the European courts already said were unlawful. If the people whose jobs were unlawfully terminated could not be restored, then perhaps the illegality of their ouster could justify the replacement of those who had unlawfully taken their places with someone lawfully appointed. A new president of the Supreme Court and a new data protection supervisor could both be elected by Magyar’s two-thirds parliament.

The Magyar government may well look to European law to assist it in removing other legal effects of Orbán’s democracy-destroying laws. Hungary could informally ask the Commission to bring infringement actions against Hungary covering violations that the Hungarian government would want to remedy in order for the ECJ to establish that the reforms would be required by EU law. If that fails, Article 259 TFEU allows a member state of the EU to bring another member state to the Court of Justice to enforce EU law. The Article 259 TFEU route would allow the case to proceed if the Commission fails to see the point.

As one example of how infringement actions might be used, Péter Magyar has put freeing the competition authority from political control high on his list. If the Commission (or a friendly state) brought an infringement action against Hungary complaining about the independence of its competition authority, could the Magyar government be justified in firing the current occupants and installing new ones – or perhaps establishing a parallel institution with stronger guarantees of independence – if the ECJ were to find that the present competition authority were not independent?

A European Constitutional Court for Hungary

When the last rendszerváltás (regime change) occurred in Hungary in 1989, the Constitutional Court was the most significant new institution created to guide Hungary’s transition into a new democratic order. That new court sat on top of the existing legal system to weed out old statutes not compliant with the new legal order and to ensure that all constitutional actors honored the new constitution. That Constitutional Court in Hungary has now been captured, but perhaps the new rendszerváltás could proceed in a similar way, by establishing a new court on the top of the existing legal system – including on top of the existing Constitutional Court – to bring the Hungarian legal system into compliance with both EU and ECHR law.

This new European Constitutional Court, the Európai Alkotmánybíróság, could complete the task of nullifying and removing from the books statutes, cases and decisions that fail to comply with European law. It could even restore the actio popularis jurisdiction that once allowed the original Constitutional Court to speedily review laws for compliance with the then-new constitution and that could now be used to reviews laws for compliance with European law. Of course, establishing such a national court would normally require a constitutional amendment that could be blocked by presidential veto. But if the veto stood in the way of enforcing EU law in Hungary, it could be set aside. The added value of a new court is that it could apply clear European Union and European human rights law without the long detours to Luxembourg and Strasbourg.

The details of all of these proposals would have to be worked out, as there are complicated technical questions to be considered about just how European law overrides national law and what its detailed effects are. But in attempting to comply with European law by setting aside conflicting national law, the new Magyar government would be honoring its commitments to the “rule of law writ large”, a conception of the rule of law that extends to harmonizing national law with its transnational commitments.

European law in its various forms could therefore be a useful crutch for the Magyar government to lean on as Hungary recovers from its bout of autocratic capture. It could assist in avoiding constitutional crises as the Fidesz forces dig in to thwart the Magyar government’s democratic mandate. European law could act as an immediate interim constitution, providing guidance for a new Hungarian transition until such time as the new Hungarian government can replace the Orbán constitution with one more fitting its proud place in Europe.