THE CONSTITUTIONAL COURT REJECTED THE INITIATIVE SUBMITTED BY THE MEMBERS OF PARLIAMENT CONCERNING THE REGULATION ON POSTERS18 December 2018
Fifty-two Members of Parliament initiated the annulment by the Constitutional Court of the amendment of the Act on Townscape Protection. The Constitutional Court rejected the petition and it underlined in its decision, among others: the invalidity under public law of the challenged regulation may not be established, it is not within the scope that requires regulation in a cardinal Act, it is clearly interpretable by the market operators and neither does it violate the freedom of expression.
The challenged provisions contain regulations that pertain to the seller of the media advertising surface and the advertiser if the advertiser is a supported person specified in the Act on the budget. The aim of the provisions is to make poster campaigns more transparent and to decrease the risk of corruption that may result from non-transparent pricing practice.
According to the petitioners, the amendment is invalid under public law as it has been adopted in a manner violating the provisions of the Standing Orders. The Constitutional Court pointed out: the mere violation of any provision of the Standing Orders does not automatically result in the invalidity of the Act under public law. The violation of the Fundamental Law can only be established if the legislative process is in breach of those provisions of the Standing Orders that originate directly from the Fundamental Law. This interpretation is also in compliance with the achievements of our historical constitution. As the Standing Orders contain no rule on the procedure of the legislative committee in the scope challenged by the petitioner, in the present case the violation of the Standing Orders could not have an effect on the invalidity of the rule under public law.
The petitioner challenged in the context of adopting the Act that although the President of the Republic had returned to the Parliament the originally adopted Act, the Parliament adopted a new law with a text different from that of the Act sent originally. The decision emphasizes that the repeated discussion of the Act returned for consideration is an obligation under the Fundamental Law. However, as the President of the Republic returned to the Parliament the originally adopted Act with a request of “discussing it repeatedly in its entirety”, it is not in conflict with the Fundamental Law to amend the returned Act comprehensively.
The petitioners also challenged that, according to the Fundamental Law, several elements of the regulation concerned, namely the economic management of political parties, fell into the scope of regulation in a cardinal Act. However, the Constitutional Court established that the requirement of regulating the subject matter in a cardinal Act may not be extended to an indirect connection related to the economic management of political parties.
Regarding the due time for preparation, legal certainty has not been violated as the regulation did not render it impossible to adapt to the provisions of the law. In the context of the clarity of norms, the Constitutional Court underlined that the challenged provision of the law does not contain any term that would be uninterpretable by the actors in the market concerned.
The petitioners also raised concerns about the violation of the freedom of expression granted in the Fundamental Law. The Constitutional Court held that the responsible management of public funds and its transparency provided due justification for the necessity of the regulation. Neither can the regulation be regarded as disproportionate since the Act is based on the list price referring to the customary market price between independent parties.
According to the petitioners, by empowering the government office to carry out the preliminary and ex-post control of the contracts concluded by political parties, the government office shall become entitled to control the economic management of the political parties. To the contrary: as underlined in the decision, only the State Audit Office of Hungary is entitled to control the legality of the economic management of the political parties and the monitoring activity of the government offices is limited only to examining the setting of the price applied in the contract concluded between the seller of the media surface and the advertiser, which – as the case may be – can be a political party.
On the basis of the above, the Constitutional Court rejected the petition. Judge Dr. Béla Pokol attached a dissenting opinion and Judge Dr. István Stumpf attached a concurring opinion to the decision.