The 2017 Amendment of the Forest Act is in conflict with the Fundamental Law18 June 2020
In its decision of 15 June 2020, the Constitutional Court stated that several elements of the 2017 amendment of the Act XXXVII of 2009 on the Forest, Forest Protection and Forest Management is unconstitutional. The Constitutional Court therefore annulled these provisions, allowing the forestry and nature conservation authorities to order, in all forests, the measures strictly necessary for the protection of the particular natural values of the forest concerned.
In the case, the Commissioner for Fundamental Rights turned to the Constitutional Court because, in agreement with the Deputy Commissioner for the Protection of the Interests of Future Generations, he considered that the amendment to the Forest Act primarily served the interests of forest managers by overshadowing environmental considerations.
The Constitutional Court underlined in its decision that, according to Article P (1) of the Fundamental Law, the state manages as a kind of trustee for future generations the natural and cultural treasures entrusted to it and belonging to the common heritage of the nation, therefore, the right of the present generations to use and utilise these resources is not unlimited. These rights shall only be of such extent that does not jeopardize either the natural values themselves to be protected individually or the safeguarding of the interests of future generations. This general standard is also applicable during the constitutional review of the legal regulation on forests, as natural values that are part of the nation’s common heritage according to Article P (1).
Natura 2000 areas are farming territories where – in the interest of protecting the species of plants and animals living there – agricultural activity can only be performed with significant restraints regarding the compliance with special regulations in the field of environmental protection and nature conservation. However, from 2017 onwards, the law-maker changed the definition of the Natura 2000 protection purpose due to which a significant part of the forest areas classified as such have lost their Natura 2000 protection purpose, thus the enforcement of economic considerations to the maximum extent has become the sole purpose of forest maintenance. The Constitutional Court pointed out that the very reason of an area belonging to the Natura 2000 network is because species of plants or animals in need of special protection live there. The Constitutional Court therefore held that the right of private forest owners to property shall not justify the promotion of economic interests against the protection of natural values and that forest managers may not form a constitutionally protected right to obtain, in the forests bearing natural values, additional rights of economic management to the detriment of the enforcement of nature conservation. The Constitutional Court therefore annulled the elements of the 2017 amendment to the Forest Act concerning Natura 2000 forest areas. The Constitutional Court also found it to be in conflict with the Fundamental Law and annulled the element of the amendment to the Forest Act that allowed the designation of economic purpose in the case of forests in protected natural areas.
The Constitutional Court also annulled the legal provisions that, by changing the rule previously in force, made the registration of the protection purpose of protected natural areas of local significance subject to the prior consent of the forest manager, as well as certain rules on leaving in the forest seed-trees and dead trees. In the opinion of the Constitutional Court, however, the amendment of the Forest Act is not contrary to the Fundamental Law with regard to changing the order of the protection purpose of individual forests, according to which flood protection and national defence purposes now precede the nature protection purpose.
The Constitutional Court also examined the rule of the 2017 amendment to the Forest Act, which essentially made the possibility of clear-felling common in state-owned forests. The Constitutional Court found that clear-felling causes extremely severe and irreversible damage to the ecosystem, with which no fundamental right or constitutional value can be confronted in the case of state-owned forests, therefore it cannot be constitutionally justified. Therefore, the Constitutional Court also annulled the relevant provisions.
Finally, the Constitutional Court also annulled the provision of the Forest Act and the Nature Conservation Act that introduced notification to the forestry authority to replace the previous procedure of obtaining nature conservation permit in connection with activities in forests in protected natural areas.
Justice Egon Dienes-Oehm attached a concurring reasoning to the decision, while Justices Tünde Handó, Béle Pokol, Mária Szívós and András Varga Zs. attached dissenting opinions.