News

SUMMARY OF THE CASE-LOAD AND STATISTICAL DATA FOR THE SECOND QUARTER OF 2022

1 August 2022

At the end of each quarter and at the end of the year, the Constitutional Court publishes detailed tables of its case-load. Below we summarise the key data for the second quarter of 2022 and provide an overview of the data on case-load and the decisions.

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The Constitutional Court has dismissed the petition for ex-post review of a legislative provision amending the concept of the place of residence

14 February 2022

The Constitutional Court has dismissed the petition seeking a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of Section 5 (2) of Act LXVI of 1992 on the Register of Personal Data and Residential Addresses of Citizens. In the view of the Court, the amendment to the Act can only affect the place of exercise of the right to vote in single-member constituencies, but does not otherwise affect the conditions of political participation in any substantive way.

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STATEMENT BY THE CHIEF JUSTICE OF THE CONSTITUTIONAL COURT IN DEFENCE OF THE RULE OF LAW

15 December 2021

In an open letter, Tamás Sulyok has expressed his reaction to the political ideas that have been gaining momentum in recent months, which envisage the abolition with one stroke of a pen of the Fundamental Law and the dissolution of the Constitutional Court in the event of a change of Government.

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Decision of the Constitutional Court on the interpretation of the provisions of the Fundamental Law allowing the joint exercise of powers

10 December 2021

The Constitutional Court, in connection with the judgment of the Court of Justice of the European Union on the status of foreigners unlawfully residing in the territory of the Hungarian State, has ruled, on the basis of the interpretation of the Fundamental Law, that where the joint exercise of competences is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. However, the Constitutional Court did not assess whether the incomplete effectiveness of the joint exercise of competences was realised in the specific case. The Constitutional Court also emphasised in its decision that the abstract interpretation of the Fundamental Law cannot be the subject of a review of the CJEU judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law.

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THE RULES ON ADDITIONAL PRIVILEGES ATTACHED TO THE IMMUNITY CARD DO NOT INFRINGE THE PRINCIPLE OF NON-DISCRIMINATION

2 November 2021

The Constitutional Court rejected the motions to establish a conflict with the Fundamental Law and annul certain provisions of the Government Decree No. 484/2020. (XI. 10.) Korm. on the second phase of protective measures applicable during the period of state of danger. The provisions challenged by a large number of petitioners gave immunity certificate holders additional rights compared to those who did not have them.

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THE GOVERNMENT DECREE ISSUED IN THE STATE OF DANGER ON CERTAIN RULES AFFECTING HIGHER EDUCATION IS NOT IN CONFLICT WITH THE FUNDAMENTAL LAW

2 November 2021

The Constitutional Court rejected the judicial initiative to declare that Government Decree No. 522/2020 (XI. 25.) Korm. on certain rules affecting higher education in times of the state of danger is contrary to the Fundamental Law, to annul it and to prohibit its application. The Constitutional Court found in its decision that the enforcement of the contested regulation does not violate the autonomy of higher education guaranteed by the Fundamental Law, provided that the maintainer, in making its decision, took the measure under the contested regulation in cooperation with the higher education institution and with the consent of the body representing the autonomy of the higher education institution. The existence of the consent of the Senate must be examined by the ordinary court in its proceedings.

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The operation of the Constitutional Court during the epidemic emergency and the restrictive measures imposed following a new wave of the epidemic

8 March 2021

During the period of the epidemic emergency and the restrictive measures imposed due to the new wave of the epidemic, the Constitutional Court’s bodies will continue to meet online and the court staff will work in general from home.

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The expression of opinion is free, the dividing line is the protection of human dignity

5 February 2021

The Constitutional Court decided in its most recent sitting on two cases implying the assessment of the limitations of the freedom of expression and freedom of the press, as well as the constitutionality of relevant judgements by the courts and the Curia. In both cases, the fundamental statement made by the Constitutional Court was paying respect to the inviolability of human dignity as also enshrined in the Fundamental Law.

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The government decree classifying as of national strategic importance the intention to extend the Central European Press and Media Foundation is not in conflict with the Fundamental Law

25 June 2020

In its decision published today, the Constitutional Court found that the Government Decree on the classification as of national strategic importance the acquisition of the Central European Press and Media Foundation (KESMA), ECHO HUNGÁRIA TV Television, Communication and Service Private Limited Company, Magyar Idők Kiadó Limited Liability Company, New Wave Media Group Communications and Service Provider Limited Liability Company and OPUS PRESS Private Limited Company in not in conflict with the Fundamental Law.

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LATEST DECISIONS/SUMMARIES

Decision 3110/2022. (III. 23.) on the supervisory powers of the data protection authority

23 March 2022

The Constitutional Court declared that the challenged judgements of the Curia and of the Budapest-Capital Regional Court were in conflict with the Fundamental Law and annulled them. The petitioner data protection authority received a notification, in which the notifier objected to the data controller’s processing of data relating to the collection of signatures to force joining the European Public Prosecutor’s Office. The petitioner conducted a data protection investigation procedure, followed by an ex officio procedure, and in its decision found that the controller had collected personal data without legal basis, had not provided adequate information to the data subject, and therefore the authority ordered the controller to delete the data and to pay a data protection fine. The Budapest-Capital Regional Court, acting on an appeal by the data controller, annulled the provision of the decision ordering the data controller to delete the data. The judgement stated that, under the GDPR, the data subject is the person who has the right to request the controller to erase personal data relating to him or her without undue delay. According to the reasoning of the judgement, the data protection authority was not entitled to order the erasure of personal data in the absence of a request by the data subjects. Following a request for review by the defendant authority, the Curia upheld the judgement of the first instance. In the petitioner’s view, the judgement of the Curia violates the right to a fair trial and the right to legal remedy, and in its view the Curia’s judgement restricted the petitioner’s competence in a manner that is contrary to the Fundamental Law. In its decision, the Constitutional Court found that the courts, in their decisions and deliberations in the context of the right to the protection of personal data, failed to recognise that the broad supervisory control of data protection authorities had also been guaranteed under the Fundamental Law, EU law and obligations under international law before the GDPR. If the authority finds during the inspection that the processing of personal data by the controller is unlawful, it follows from the effective protection of fundamental rights, which is the main task of the authority, that it can not only inspect and detect unlawful personal data processing, but also order the erasure of such data ex officio (in order to protect the fundamental rights of third parties). The plenary session of the Constitutional Court thus stated that the challenged judgements of the Curia and the Budapest-Capital Regional Court were in conflict with the Fundamental Law, therefore annulled them.

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Decision 3063/2022 on the definition of the place of residence

14 February 2022

The Constitutional Court has dismissed the petition seeking a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of Section 5 (2) of Act LXVI of 1992 on the Register of Personal Data and Residential Addresses of Citizens. In the view of the Court, the amendment to the Act can only affect the place of exercise of the right to vote in single-member constituencies, but does not otherwise affect the conditions of political participation in any substantive way. The petitioning Members of the National Assembly requested the Constitutional Court to find that Section 5 (2) of the Act, which entered into force on 1 January 2022, as amended by Act CXIX of 2021, was unconstitutional by non-conformity with the Fundamental Law and to annul this provision retroactively to its entry into force. Under the definition prior to the amendment, the conceptual element of the place of residence of a citizen was habitual residence. Accordingly, the citizen’s place of residence was the residential address of the dwelling in which the citizen lived. By contrast, the amendment removes the requirement of habitual residence, since, pursuant to the amended wording of the Act, the place of residence of a citizen is the residential address of the dwelling or accommodation which serves as the basis for the citizen’s official relations with the State and with natural and legal persons and organisations without legal personality, as well as for his rights and obligations linked to the place of residence. The petitioning Members of the National Assembly consider that, as a result of the amendment, the register of residential addresses is no longer able to provide proof of actual presence of a person in the place of residence. Since that register forms the basis for the electoral roll, the requirement of a closer link with the place of residence, which is of decisive importance in the mixed electoral system for the general election of Members of the National Assembly and in the referendum, is no longer applicable. The contested provision therefore infringes the requirement of the rule of law laid down in Article B (1) of the Fundamental Law and restricts the right to vote and to hold a referendum without a legitimate aim. In its decision, the panel of the Constitutional Court explained that the amendment to the concept of the permanent place of residence was necessary for legislative reasons, because the register of personal data and residential addresses of citizens, as established by the Central Statistical Office, did not reflect the reality in a significant number of cases, and the new definition of the concept of permanent place of residence chosen by the legislator seemed suitable to resolve the difference between the data content of the publicly authentic register and the actual factual situation. Apart from the amendment of the concept of the permanent place of residence, the legislator did not change either the mixed electoral system or the rules on the right to vote in local and European Parliament elections and local referendums and in single-member constituencies, which are closely related to the permanent place of residence. Nor does the change in the concept of the permanent place of residence in itself affect the conditions for political participation. Apart from the right to participate in local and European Parliament elections and local referendums, the change in the concept of the permanent place of residence can only affect the place where the right to vote in a single-member constituency is exercised, that is, the single-member constituency in which a voter entitled to vote in a single-member constituency can vote. In the light of the above considerations, the Constitutional Court dismissed the petition for a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of with retroactive effect to the date of its entry into force of the impugned provision.

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Decision 32/2021 on the joint excercise of powers

10 December 2021

The Constitutional Court, in connection with the judgment of the Court of Justice of the European Union on the status of foreigners unlawfully residing in the territory of the Hungarian State, has ruled, on the basis of the interpretation of the Fundamental Law, that where the joint exercise of competences is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. However, the Constitutional Court did not assess whether the incomplete effectiveness of the joint exercise of competences was realised in the specific case. The Constitutional Court also emphasised in its decision that the abstract interpretation of the Fundamental Law cannot be the subject of a review of the CJEU judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law. On behalf and under the authorisation of the Government, the Minister of Justice submitted a petition to the Constitutional Court seeking an interpretation of Article E (2) and Article XIV (4) of the Fundamental Law, because the implementation of the judgement of the CJEU delivered on 17 December 2020 in Case C-808/18 raises a constitutional problem that warrants an interpretation of the Fundamental Law. The Constitutional Court, interpreting the ‘Europe Clause’ of the Fundamental Law, held that where the exercise of joint competences with the Union is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The Constitutional Court further held that where the incomplete effectiveness of the joint exercise of competences results in consequences that raise the issue of the violation of the right to identity of persons living in the territory of Hungary, the Hungarian State shall be obliged to ensure the protection of this right in the context of its obligation of institutional protection. Finally, the Constitutional Court held that the protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and State structure shall be part of its constitutional identity. The Government sought an interpretation of the Fundamental Law from the Constitutional Court. The petitioner submits that the implementation of the judgement of the Court of Justice of the European Union in case C-808/18 raises the constitutional problem at issue if Hungary allows the implementation of an EU legal obligation which may lead to a foreign national illegally staying in Hungary remaining in the territory of a Member State for an indefinite period of time and thus becoming part of the population of that State. In its decision, the Constitutional Court observed that the abstract constitutional interpretation cannot be converted into a position applicable to the specific case giving rise to the petition, and therefore the Constitutional Court only addressed the genuine problems of constitutional interpretation directly derivable from the issue. The Constitutional Court thus interpreted Article E (2) of the Fundamental Law. The Constitutional Court was not in a position to assess whether the incomplete effectiveness of the joint exercise of competences had been resolved in the specific case. Nor was the Constitutional Court able to take a position on the question whether the petitioner’s argument that the CJEU judgement could lead to foreign nationals becoming part of the population of Hungary was correct. The Constitutional Court found that the above was a matter to be judged by the body applying the law and not by the Constitutional Court. However, the Constitutional Court stressed that the abstract interpretation of the Fundamental Law cannot be aimed at reviewing the judgement of the CJEU, nor does the Constitutional Court’s procedure in the present case, by its very nature, extend to the review of the primacy of EU law. The Constitutional Court had to assess whether the incomplete effectiveness of the joint exercise of competences could lead to a violation of Hungary’s sovereignty, constitutional identity or fundamental rights and freedoms (including, in particular, human dignity) enshrined in the Fundamental Law. The Constitutional Court first considered the possible violation of the fundamental rights and freedoms guaranteed by the Fundamental Law. The Constitutional Court pointed out that Man, as the most elementary constituent of all social communities, especially the State, is born into a given social environment, which can be defined as the traditional social environment of man, especially through its ethnic, linguistic, cultural and religious determinants. These circumstances create natural ties, determined by birth, which shape the identity of community members. These natural ties or qualities, which are determined by birth, are seen as circumstances that influence a person’s self-determination, which, on the one hand, are created by birth and, on the other hand, are qualities that are difficult to change. Protection under constitutional law should not be an abstract, static protection of the individual detached from his or her historical and social reality: It must take into account the dynamic changes in contemporary life. In the Constitutional Court’s view, since the State cannot make unreasonable distinctions regarding fundamental rights on the basis of these characteristics, it must also ensure, in the light of its obligation of institutional protection, that changes to the traditional social environment of the individual can only take place without significant harm to these determining elements of identity. The Constitutional Court stated, that the joint exercise of the competences through the institutions of the European Union may not lead to a lower level of protection of fundamental rights than that required by the Fundamental Law. In the same vein, the fact that an EU legal norm binding on the Member States meets the requirements of the Constitution but is not properly implemented, that is, the result of the binding norm is not or only partially enforced, cannot lead to a lower level of protection of fundamental rights than required by the Constitution. In that context, the Constitutional Court has held that if the joint exercise of the competences through the institutions of the European Union is incomplete, Hungary is entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until such time as the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The decision was accompanied by a concurring reasoning by justice dr. Czine Ágnes, dr. Dienes-Oehm Egon, dr. Horváth Attila, dr. Hörcherné dr. Marosi Ildikó, dr. Márki Zoltán, dr. Salamon László, dr. Schanda Balázs, dr. Szabó Marcel and dr. Szívós Mária and a dissenting opinion by justice dr. Hörcherné dr. Marosi Ildikó and dr. Pokol Béla.

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Decision 3537/2021 on mandatory vaccination of healthcare employees

5 October 2021

The Constitutional Court rejected the constitutional complaints for the declaration of a conflict with te Fundamental Law and annulment of the Government Decree No. 27/2021 (I.29.) on the declaration of a state of danger and the entry into force of emergency measures, and the Government Decree No. 449/2021 (VII.29.) on the compulsory use of the coronavirus vaccination. According to the provisions challenged in a large number of petitions, in order to protect the health and life of citizens, employees of health care providers are obliged to take up the vaccination by 1 September 2021 (15 September 2021 after the amendment of the decree) in the case of single-dose vaccines, or the first dose of the vaccination in the case of double-dose vaccines, and the second dose of the vaccination by the date set by the vaccinating physician. The government decree that entered into force on 19 November 2021 also required taking a third vaccination. Failure to take up the vaccinations shall result in immediate termination of the employment of the employee by way of dismissal or termination and the employee shall not be entitled to any notice period of dismissal or termination to any severance pay. However, the employee is exempted from the obligation if he/she is contra-indicated for medical reasons to take up the vaccination and this is supported by a medical opinion. The Constitutional Court has received a large number of constitutional complaints (almost 300), drafted on the basis of different model motions, but with essentially the same wording, concerning the mandatory vaccination against COVID-19 for health workers. The Constitutional Court merged these model motions in the present case, and admitted the constitutional complaint on 5 October 2021, and subsequently, in the course of the substantive examination, ruled on the case with urgency. The petitioners are health care workers subject to the government regulations. In their view, the contested provisions infringe the right to human dignity, the right to working conditions which respect health, safety and dignity, and the fundamental right to physical and mental health. As explained in the petitions, the government decrees on the mandatory use of the coronavirus vaccination, going beyond the mandate of the Fundamental Law, impose a disproportionate legal burden on the non-use of the vaccination and are unreasonable in relation to the objective pursued. In its decision, the Constitutional Court stated that the contested regulation serves the continuous operation of the health care system and the safety of patient care, and within the framework of these state objectives, the enforcement of the right to life and health of the members of society, the patients. The Constitutional Court recognised the enforcement of the right to life and health guaranteed by the Fundamental Law, the protection of institutions, the reduction of the health, social and economic impact of the coronavirus epidemic, and, in particular, the continuous functioning of the health care system and the safety of patient care as legitimate objectives of the mandatory vaccination of health care workers. In its decision, the Constitutional Court, also referring to the position taken by the World Health Organization (WHO), stressed that the achievement of public health objectives – in particular the containment of a serious epidemic and the mitigation of its consequences – may justify the use of coercive legal instruments as a last resort. In the present case, although the law-maker did not use direct coercion to require vaccination, it undoubtedly exerted strong pressure on health professionals (i.e. those who come into direct contact with patients) by imposing adverse legal consequences for failure to taking up the vaccine. The aim is to increase vaccination coverage in the health sector, which is the most critical sector for tackling the epidemic. In the Constitutional Court’s view, the actual obligation to taking up vaccination constitutes a proportionate restriction of the right to health self-determination, therefore the creation of the sanction under the contested legislation did not result in a disproportionate interference with the petitioners’ right to health self-determination and the essential content of that right. On the basis of the above, the Constitutional Court considered that the restriction of fundamental rights provided for was necessary and proportionate, and therefore rejected the petitions for a declaration that the contested provisions of the government decrees were contrary to the Fundamental Law and for their annulment.

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Decision 23/2021 AB on the general ban of assembly during the period of state of danger

13 July 2021

The Constitutional Court established as a constitutional requirement that the law-maker may only suspend the exercise of the right of assembly in times of a state of danger for a period of time and within the scope of what is indispensably necessary, and only in such a way that it must examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right or its restriction exceeding the requirement of proportionality under the Fundamental Law. In the case at issue, the petitioner sought the declaration that certain provisions of the Government Decree on the second phase of protective measures applicable during the period of state of danger were contrary to the Fundamental Law and the annulment of those provisions. According to the contested provisions, it is prohibited to assemble or gather in public ground or public places, or to organise, hold or be present at the place of an event or gathering during the time of the state of danger. In the petitioner’s view, the contested provisions unnecessarily and disproportionately restrict, in fact, empty out the right to assembly, and by excluding the consideration of the circumstances and by laying down the general prohibition in the law, deprive the petitioner of the possibility of effective judicial remedy. In its decision, the Constitutional Court stated that the right to assembly is one of the most important fundamental political rights, which is the cornerstone of any democratic society, but the protection against the coronavirus epidemic, the minimisation of risks as far as possible, is also a prominent, constitutionally justified objective of the state. Although it would be an exaggeration to state that all fundamental rights must be fully respected in order to protect against an epidemic, in the present case, the temporary exclusion of the freedom of assembly, one of the riskiest fundamental rights for the spread of the epidemic, can be considered a necessary restriction. In its decision, the Constitutional Court stressed, however, that the proportionality of the rules is particularly important in terms of the time: the longer the period of suspension of the exercise of a fundamental right, the stronger justification is needed for maintaining the restriction. The complete exclusion of the exercise of a fundamental right cannot be justified on the basis of the danger alone, but it must be decided on a recurring basis whether the circumstances actually justify the suspension of the fundamental right. Therefore, the Constitutional Court, in addition to rejecting the constitutional complaint, attached a constitutional requirement to the challenged legislation, according to which the legislator may suspend the exercise of the right of assembly only for the time and within the scope strictly necessary even in times of a state of danger, and is obliged to examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right.

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Decision 3067/2021 on the implementation of keeping contacts

24 February 2021

The Constitutional Court declared to be in conflict with the Fundamental Law and annulled the rulings of the Szekszárd Regional Court and the Paks District Court in the subject-matter of keeping contacts. In the case underlying the proceedings, the petitioner was a father living separately from his child, and the child was not handed over by the mother to the father with reference to the emergency situation ordered due to the coronavirus epidemic. The petitioner asked the court to order the enforcement of contacting, however his request had been rejected by the court at first instance, upheld by the court of second instance. According to the petitioner, his right to a fair trial and his right to family life and contacting have been violated due to the grossly contra legem application of the law in the rulings and the lack of adequate reasoning. In its decision, the Constitutional Court found that the proceeding court had failed to comply with the requirement of the gentle equalization and fair balancing of fundamental rights’ positions based on the principle of proportionality, because it had decided to restrict contacting rights solely on the basis of the general epidemic risk as a remote, abstract health risk. The judicial decisions could therefore lead to the emptying of this right, therefore the Constitutional Court annulled the challenged judicial decisions.

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Decision 6/2021 on insulting the community of Catholics

19 February 2021

The Constitutional Court found that the judgements delivered by the Curia and the Budapest-Capital Regional Court in the subject-matter of offending the Catholic community were in conflict with the Fundamental Law and, therefore, annulled them. In the case underlying the procedure, the petitioners, as the members of the Catholic community, brought an action as plaintiffs with the Budapest-Capital Regional Court because of a performance performed at a demonstration against the position taken by the Polish Catholic Church in support of the prohibition of abortion. In their action, the plaintiffs asked the court to declare that through their affiliation with the Catholic religious community, which was an essential feature of their personality, the defendants violated their human dignity and their right to practice their religion freely by presenting a performance – subsequently uploaded to the internet – imitating the Eucharist, in which one protester placed a white pill from a bag labelled “abortion pill” on the tongue of the other two defendants, accompanied by making the statement “Body of Christ”. The Budapest-Capital Regional Court acting on first instance dismissed the action and the Curia, in its judgement closing the review proceedings, upheld the judgement of first instance. According to the petitioners, the judgements of the regional court and the Curia are contrary to the provisions of the Fundamental Law granting that the exercise of the freedom of expression may not be aimed at violating the human dignity of others or religious communities. In its decision, the Constitutional Court found that the challenged judgements acknowledged that the petitioners had been offended through their religious community, at the same time, they accepted the offensive communication as a constitutionally protected expression of opinion, without examining the content of the opinion of the specific conduct actually complained about or its contribution to the discussion of a public affair; consequently, the courts hearing the case (could) not have examined with due diligence whether or not the communication at issue was intended to offend the community concerned. With regard to offensive communication, the courts stated that members of the religious community were subject to a broad tolerance obligation similar to that of public figures, as a result, the protection of the dignity of the petitioners’ religious community was undermined by the exercise of the freedom of expression. The Constitutional Court found that the challenged decisions were in conflict with the Fundamental Law and therefore annulled them. However, the Constitutional Court stressed that due to the limitations of its competence, the Constitutional Court did not establish in its decision whether or not the specific act complained of in the case seriously harmed or unjustifiably offended the Catholic religious community and, through it, the human dignity of the petitioners, as it will be up to the courts proceeding repeatedly to judge upon these issues.
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Decision 5/2021 on waste management

9 February 2021

In the course of the proceedings initiated by the motion of the President of the Republic, the Constitutional Court found that Section 49 (1) of the Act on Amendments to Certain Energy and Waste Management Acts, passed by the National Assembly on 15 December 2020, was contrary to the Fundamental Law. Under the challenged paragraph of the Act, the possessor of waste may dispose of it only by transferring it to the State, the concessionaire or the concessionaire’s subcontractor, which waste thus becomes the property of the State, the concessionaire or the concessionaire’s subcontractor; according to this, the ownership of production and industrial waste is taken away by law. However, as explained in the petition, these wastes represent value, but the law does not provide for the related compensation in any way, and it even foresees the obligation of the original waste holder to pay for these wastes, which causes double damage to the producer with respect to commercially tradeable wastes. In the opinion of the President of the Republic, the amendment violates the provision of the Fundamental Law guaranteeing the protection of the right to property by ordering the withdrawal of the property of production and industrial waste without full, unconditional and immediate compensation. In its decision, the Constitutional Court found that the challenged provision does in certain cases indeed restrict the ownership of waste by the possessor of waste who is also the owner of waste in such a way as to cause to it real and pecuniary disadvantage without providing for an obligation of compensation to secure proportionality. The Constitutional Court emphasized that it is the task of the law-maker to create a sufficiently differentiated system that simultaneously creates compensation for waste owners and takes into account the full enforcement of mandatory public service, environmental and public health aspects in such a manner to make them comply with our regulatory obligations under EU regulations. The President of the Republic also initiated to declare that Section 38 (2) and Section 62 of the Act are contrary to the Fundamental Law, but the Constitutional Court rejected the motion to that effect.

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Decision 4/2021 on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks

22 January 2021

In addition to rejecting the motion for posterior norm control, the Constitutional Court established as a constitutional requirement that Section 5 of the Act on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks and modifying certain related Acts is applicable to the subcontractors of the Russian party and the subcontractors of the Hungarian party only if they are considered to be organisations performing a public duty. Section 5 of the Act excludes, for a period of thirty years from the date of its creation, the disclosure of all “business data”, “technical data” and “data on which a decision is based” as data of public interest related to the implementation of the expansion of the Paks Nuclear Power Plant. The petitioning MPs asked the Constitutional Court to declare this provision to be contrary to the Fundamental Law and to annul it with retroactive effect to its promulgation. According to the petitioners, this is contrary to the fundamental right to have access to and disseminate data of public interest and to the provision of the Fundamental Law stating that all organisations managing public funds must give public account of their management of public funds. In its decision, the Constitutional Court established that the disclosure of the data for the purpose of substantiating the decision may be restricted by a specific Act of Parliament in accordance with the Act on the Right to Informational Self-Determination and Freedom of Information. The protection of national security interest and intellectual property rights indicated by the challenged Act may justify a restriction on the disclosure of the data for the purpose of substantiating the decision. The Constitutional Court further held that, contrary to the petitioners’ claim, the text of the Act prescribing thirty years for the closure of the data concerned cannot be considered a disproportionate restriction, as it cannot be held an ex lege restriction; it is only a statutory presumption assuming that within this period the publicity of the data could damage the values to be protected. However, as the Act itself requires a “public interest test” to be performed, the restriction can only be applied if there is a greater public interest in it than in the disclosure of the data concerned. In view of all this, the Constitutional Court found that the challenged provision of the Act did not cause any unnecessary or disproportionate restriction of the referred to provisions of the Fundamental Law, therefore it rejected the petitioners’ motion for posterior norm control. However, in order to facilitate the application of the law, the Constitutional Court considered it necessary to establish as a constitutional requirement: the challenged provision of the Act is applicable to the subcontractors of the Russian and Hungarian parties only if they are to be regarded as organizations performing a public duty.

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Decision 2/2021 on the use of mother tongue

7 January 2021

The Constitutional Court, acting ex officio, found that it is a constitutional requirement arising from the fundamental right to use one’s own language in civil proceedings that all parties who must appear in person before the court and who are members of a nationality recognized in the Act on the Rights of Nationalities in Hungary shall be entitled under the same conditions to use the nationality language orally. In the underlying case the referring judge asked the Constitutional Court to declare a conflict with the Fundamental Law and to exclude the application in the pending lawsuit of specific provisions of the Act on the Civil Procedure (ACP) and the Act on the General Administrative Procedure (AGAP) relating to the use of one’s mother tongue. In the opinion of the referring judge, they violate the fundamental right of the nationalities living in Hungary to use their languages and violate the prohibition of discrimination. According to the challenged section of the ACP, unless otherwise provided by law, a binding act of the European Union or an international convention, submissions addressed to the courts shall be submitted in Hungarian language and the court shall also send its decision in Hungarian. Under the provisions of the Act on the Rights of Nationalities and the Fundamental Law, all nationalities listed in the annex to the Act on the Rights of Nationalities should be entitled to the right to use their mother tongue under the same conditions. However, this is not the case because, in connection with the European Charter for Regional or Minority Languages, Hungary has made commitments in respect of only a few languages in the field of civil justice, not including, for example, the Ukrainian and Ruthenian languages at issue in the main proceedings. The challenged provision of the AGAP allows the use of the nationality language by a person covered by the Act on the Rights of Nationalities, and at the same time it stipulates that on the request of the party the authority shall translate the decision – issued in the Hungarian language – made in the subject-matter of the application submitted in a nationality language into the language used in the application. In its decision, the Constitutional Court found that the referring judge had in fact submitted a motion to establish the existence of a conflict with the Fundamental Law caused by omission, which the petitioner was not entitled to do, therefore the Constitutional Court did not examine the merits of these elements of the motion, thus it did not annul the challenged provisions of the ACP and the AGAP, nor did it impose a ban on their application. However, in the course of the proceedings the Constitutional Court held that by formulating a constitutional requirement and at the same time saving the law in force, it has the possibility to remedy an arbitrary interpretation – leading to a result contrary to the fundamental right to use one’s own language as enshrined in the Fundamental Law – derivable from the wording of the challenged provisions. This arbitrary interpretation seems to find differences between the regulations applicable to the oral communication in civil proceedings by the members of certain nationalities. The Constitutional Court thus found that it is a constitutional requirement arising from the fundamental right to use one’s own language in civil proceedings that all parties who must appear in person before the court and who are members of a nationality recognized in the Act on the Rights of Nationalities in Hungary shall be entitled under the same conditions to use the nationality language orally. The Constitutional Court also ruled that if a party is a member of a nationality recognized in the Act on the Rights of Nationalities living in Hungary and wishes to use his or her nationality language orally during his or her personal appearance, he or she may do so without incurring any additional costs to him or her.
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