The Constitutional Court adopted another decision protecting natural resources26 October 2017
The National Assembly caused a violation of the Fundamental Law manifested in an omission by not providing for the adoption of a regulation – along with the amendment of the Act on the National Land Fund – to secure the long-term preservation of the National Land Fund’s assets protected by cardinal rules. The purpose of the Land Fund is to protect and preserve for the future generations the natural resources, in particular arable land, forests, water stock as well as indigenous species of plants and animals. The amended regulations do not exclude the possibility to risk the realisation of these aims due to using the revenue for decreasing state debt. The Constitutional Court order the application of the precautionary principle as one of the most severe rules of environmental law.
MP Benedek Sallai R. and more than one quarter of the Members of Parliament challenged at the Constitutional Court the provisions of three Acts (the Act amending the Act on the National Land Fund, the amended provisions of Act on the National Land Fund and the Act on the “Land for the Farmers!” Program) and a resolution of the Parliament. According to the petition, the Government and the simple majority of the National Assembly adopted the challenged provisions for the purpose of the posterior legitimization of the sale implemented in the framework of the “Land for the Farmers!” Program, thus creating a situation in breach of the Fundamental Law.
The resolution of the Parliament on closing the “Land for the Farmers!” Program has a content that does not qualify as a normative decision or order, therefore its review is beyond the Constitutional Court’s scope of competence, and the Act amending the Act on the National Land Fund has lost force. Accordingly the examination on the merits only covered the amended provisions of the Act on the National Land Fund and the Act closing the “Land for the Farmers!” Program.
The Constitutional Court established that the article of the Fundamental Law on the protection of natural resources does not imply that certain provisions of the Act on the Land Fund should be cardinal ones as the guarantee required by the Fundamental Law is secured by way of another Act (Act on the Trade of Land). In addition, the provision of the Act on the Land Fund challenged in the petition is not aimed at the utilisation of the pieces of land belonging to the Land Fund, but at using the revenue from the utilisation thereof. In turn, there is no such rule in the Fundamental Law that would require cardinality as a precondition of a legislative decision on using any revenue of the State. The Constitutional Court found that the challenged provisions of the Act on the National Land Fund and the Act closing the “Land for the Farmers!” Program were not contrary to the Fundamental Law.
At the same time, the Constitutional Court detected that the Act on the Land Fund does not contain any provision on the proportion that can be allocated to decreasing the state debt from the revenues originating from the utilisation of the pieces of land belonging to the Land Fund. The amended text of the Act on the Land Fund does not preclude a series of budgetary decisions that may decrease significantly, in the long-run, the assets managed by the Land Fund, and that may ultimately even lead to the elimination of the Land Fund. Therefore the Constitutional Court calls upon the National Assembly to meet its legislative duty by 31 May 2018, i.e. that the budget for the year 2019 should be adopted by taking this requirement into account.
Judges Dr. Marcel Szabó and Dr. László Salamon attached concurring opinions and Judges Dr. Ágnes Czine, Dr. Ildikó Hörcherné Dr. Marosi, Dr. István Balsai, Dr. Egon Dienes-Oehm and Dr. István Stumpf attached dissenting opinions to the decision. The full text of the decision of the Constitutional Court is available on the Constitutional Court’s website (alkotmanybirosag.hu), the case No. is II/01902/2016.
Budapest, 17 October 2017
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The Constitutional Court established an omission by the National Assembly regarding the sale of Natura 2000 lands in state ownership (MTI)
In a procedure of posterior norm control, the Constitutional Court dealt with certain legal questions related to the sale of State-owned lands that belong to the Natura 2000 network. The special weight of the decision lies in the fact that it has been for the first time since the establishment of the Constitutional Court that it has comprehensively reviewed the legal requirements of preserving the fauna and flora, i.e. the biodiversity of Hungary.
Natura 2000 lands are agricultural areas 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. As a background of the Constitutional Court’s procedure, with the authorisation of the National Assembly, the Government sold in the framework of the “Land for the Farmers!” Program a significant volume of Natura 2000 lands formerly owned by the state. 52 MPs who initiated the procedure filed a petition requesting the annulment of the relevant part of the law on the sale of Natura 2000 lands. The petitioners hold that the change of ownership of these lands from state to private ownership would decrease the effectiveness of preserving the natural values of the lands concerned.
The Constitutional Court established – by setting a more severe standard of environmental regulation than in its earlier decision – that every single measure is contrary to the Fundamental Law if the content of the measure in question results in the deterioration of the environment or the risk thereof, even if the legal regulation remains unchanged. The Court also pointed out: As it would be impossible to protect the biodiversity of Hungary only in the nature reserves, the Natura 2000 areas that account for as much as 22% of the country’s territory have a crucial role to play in these efforts.
In the Constitutional Court’s view, at present, there are no rules guaranteeing to take into account the aspects of the environment and of nature conservation in the process of selling Natura 2000 areas. The Court also established: the regulations in force do not grant to the Natura 2000 areas acquired by private owners the same level of protection enjoyed by state-owned areas.
Consequently the Constitutional Court called upon the National Assembly to meet its legislative obligation by 30 June 2018 regarding the regulation of both the sale of Natura 2000 areas and their utilisation after the sale.