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Decision 16/2022 (VII. 14.) AB
Posterior norm control aimed at establishing incompatibility with the Fundamental Law and annulling certain provisions of the Act CXXXIX of 2018 on the Spatial Planning Plan of Hungary and Certain Priority Regions of Hungary (exceptions to the statutory rules on the protection of the environment and the waterfront)
The Constitutional Court declared that section 71 (4) and (5) and certain parts of the text in section 76 as well as section 75 (3) (b) of the Act CXXXIX of 2018 on the Spatial Planning Plan of Hungary and Certain Priority Regions of Hungary is contrary to the Fundamental Law and annulled them. As explained in the petition of the Members of Parliament who initiated the proceedings before the Constitutional Court, all the provisions challenged contain derogations which serve to loosen the rules on the protection of the environment and the waterfront, which are in substance related to the protection of the environment. The contested provisions allow for a decision to be taken by ministerial decree in the case of section 71 (4), by government decree in the case of sections 71 (5) and 76, and by local government decree in the case of section 75 (3), which circumvents the restrictions on building construction laid down by the Act of Parliament. According to the petition, the contested statutory texts do not ensure the State’s obligation to protect nature as provided for in the Fundamental Law. The contested provisions provide a derogation without guarantees from the restrictions on building that serve the protection of the environment, stepping back to the level of protection provided by the previous, substantively identical legislation. The delegated power to restrict fundamental rights therefore makes it possible to circumvent the Fundamental Law’s requirements for Acts of the Parliament applicable to the restriction of fundamental rights. In its decision, the Constitutional Court stated that the exception rules to the (main) rules enforcing the fundamental right to a healthy environment under Article XXI (1) of the Fundamental Law (and as part of this the prohibition of derogation) and guaranteeing the enforcement of the State’s obligation to protect institutions under Article P (1) of the Fundamental Law may only be regulated at the level of Acts of Parliament, they cannot be constitutionally “subdelegated” to the level of decree as a legislative source of law. In the present case, however, the regulation creates an exception to the main rules laid down on the level of the Act of Parliament (creating the possibility of exceptional regulation by decree) in such a way as to weaken the guarantees of the fundamental right to a healthy environment. The contested provisions are therefore contrary to the Fundamental Law and the Constitutional Court annulled them with future effect.