Certain parts of the Transitional Provisions of the Fundametal Law held contrary to the Fundamental Law23 January 2013
On its Plenary Session of 28 December 2012, the Constitutional Court has declared that the Hungarian Parliament exceeded its legislative authority, when enacted such regulations into the “Transitional Provisions of the Fundamental Law” that did not have transitional character. The Hungarian Parliament shall comply with the procedural requirements also when acting as constitution-maker, because the regulations that violate these requirements are invalid. Therefore the Constitutional Court annulled the concerned regulations due to formal deficiencies. The Constitutional Court, regarding its consistent practice, did not examine the constitutionality of the content of the Fundamental Law and the Transitional Provisions.
The Commissioner for Fundamental Rights initiated the review of conformity with the Fundamental Law of certain provisions of the Transitional Provisions related to the Fundamental Law of Hungary.
The Constitutional Court has declared that Point 3 of Closing Provisions of the Fundamental Law authorises the Hungarian Parliament to adopt transitional regulations related to the Fundamental Law in order to ensure the transition from the old regulation into the new one. Nevertheless, more than two-thirds of the provisions do not have transitional character; these provisions contain long-term and general regulations.
The Constitutional Court is the principal organ for the protection of the Fundamental Law.
It is a constitutional requirement to comply with the procedural rules of legislation declared in the Fundamental Law, thus the Constitutional Court, according to its practice, examines the compliance of these formal rules. In case the Parliament exceeds its legislative authority, it is such a serious violation of the procedural rules that results the declaration of the invalidity under public law and the nullification of concerned regulations, even if the legislative body acted as a constitutent power.
The Constitutional Court did not examine the content of the Fundamental Law and of the Transitional Provisions; only the violation of the formal rules of legislation by the Parliament has been declared.
Those regulations of the Transitional Provisions have not been annulled that complied with the requirements of the rule of law laid down in the Fundamental Law. In order to protect the Fundamental Law, the Constitutional Court has declared requirements regarding the amendment and the supplemental proceedings. The Fundamental Law of Hungary is a unified legal document, thus every single amendment and supplement must be the part of the Fundamental Law either substantively and structurally.
Dr. András Holló and Dr. István Stumpf judges attached concurring opinion and Dr. István Balsai, Dr. Egon Dienes-Oehm, Dr. Barnabás Lenkovics, Dr. Péter Szalay and Dr. Mária Szívós judges attached dissenting opinion to the decision.