The Győr Regional Court of Appeal sided with the first-instance court and found that the decisions of the President of the NOJ on annulling the calls were unlawful as she failed to provide sufficient reasons for her decisions. By simply citing the text of the relevant law, she did not meet the statutory requirement that her decisions must be reasoned “to the extent it is necessary”. The court, joining the first-instance court, also invoked the 13/2013. (VI. 17.) decision of the CC which held that the President of the NOJ must provide adequate reasons for her decision on staff matters in order that the right to legal remedy can be fully exercised by the affected parties. The requirement that employers must give clear and reasonable justification for their individual measures can also be derived from the 2012 Labour Act.
The court argued that Hungarian laws must be interpreted in the light of the fundamental principles of the EU law such as the rule of law, effective legal remedy and effective judicial protection stemming from Article 2 and 19(1) of the TEU and Article 47 of the Charter. It held that the principle of effective judicial protection is also grounded in Article 6 and 13 of the ECHR and the shared constitutional tradition of EU Member States. For these reasons, the applicant has the right to turn to courts against the decision of the NOJ President concerning judicial appointments even if the Hungarian law does not explicitly mention this possibility.
The court ordered the President of the NOJ to decide on the merits of the calls: (1) by appointing the applicant to higher judicial position, or (2) by submitting the proposed change in the ranking of the candidates to the National Judicial Council for approval, or (3) by annulling the application on relevant statutory grounds.
However, the Curia, in an extraordinary review procedure, overturned the major findings of the judgment rendered in the retrial proceeding. The Curia first held that according to the Hungarian law, it was not possible to file a case directly against the President of the NOJ, and EU law could not have been invoked as the legal issue (i. e. who can be sued in case of an annulled application procedure) was an internal one without any EU law relevance. Second, the Curia argued that the challenged decisions were not classified as personnel decisions by Hungarian law, so they were lawful and did not require more detailed reasoning. Third, the Curia stressed that courts had no power to decide on the application procedure on the merit, and the second-instance court could not have ordered the President of the NOJ to decide on the call as the particular legal consequences prescribed by the appeal court had no statutory basis.
The applicant filed a constitutional complaint with the CC claiming that the decision of the Curia was in breach of the Fundamental Law and violated Article 26 which declares that judges must be independent, and also the right to a fair trial and seek legal remedy protected by Article XXVIII(1) and (7).
The case is currently pending before the CC, and as of February 2022 it was found admissible and will be decided on the merit.