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Decision 17/2018 on noise emission threshold of race courses with international licence
Judicial initiative against Section 110 (6a) of the Act LIII of 1995 on the General Rules of Protecting the Environment and point 2.1.1 and point 2.2.1 of Annex 1 of the Government Decree No. 27/2008. (XII. 3.) Korm. on establishing the thresholds for environmental sound and vibration pollution (sound pollution - race course)
The Constitutional Court adopted a decision in the case of the noise protection of race courses with international licence. Due to the violation of the right to a healthy environment, the Court annulled with future effect certain provisions of the decree on noise protection. Of course the affected race courses may also be operated in the future in the framework of the currently applicable legal regulations, as the decision of the Constitutional Court does not result in losing their functionality.
The procedure of the Constitutional Court was based on a judicial initiative Due to the excessive noise pollution the plaintiffs of the basic case had started an action against a company in exclusive State ownership that operates a race course with international licence in Mogyoród. The court’s initiative was aimed – among others – to the examination of the constitutionality of the noise protection decree amended in the period under litigation. The amendment resulted in significantly increasing the noise pollution breakpoint and according to the initiative this would result in the decrease of the achieved level of protection and violates the right to a healthy environment. Accordingly, the Constitutional Court, acting in its power of norm control, examined the constitutionality of the noise protection regulations.
The right to a healthy environment, enshrined in the Fundamental Law, has a substantial element, namely that a specific level of protecting the environment, once achieved, should not be decreased. The prohibition of stepping back is not automatic, it shall be enforced in accordance with its function during the protection of fundamental rights. The Constitutional Court also established on the basis of the complex examination that noise emission is covered by the scope of the right to a healthy environment and the challenged regulation – despite of the more severe provisions applicable to the noise emitting party – as a whole resulted in stepping back from the previous level of protection as it fails to apply an appropriate counterweight regarding the possibility of a significantly higher noise level over the impact area. In particular, it fails to provide a counterweight regarding the increased levels applicable to the days subject to an exemption, although these levels are well above the levels according to the general rules and they may be used during as much as 40 days without interruption.
The Constitutional Court pointed out that the operation of the race course with an international licence has beneficial effects on tourism, on the motorsport, on the domestic and the international image of Hungary and it also has positive effects on the national economy, such as the increase of tax revenues. All these factors support the position that it is of public interest to operate in Hungary a race course with an international licence. However, no public interest may justify stepping back, namely a situation where the population of the neighbouring settlements should tolerate – without protective measures – a noise level higher than in the past.
The Constitutional Court also assessed whether decreasing the level of protection could be justified by the fundamental right to enterprise. The operation of the race course qualifies as an enterprise and pursuing this activity results in the noise pollution of the environment. The Constitutional Court established that although a step-back might be necessary in this context, as the races usually come along with high noise emission, but this would not be proportionate. The lawmaker has not selected one of the most moderate means suitable for achieving the purpose, but it institutionalized a solution disproportionately expanding over these. The functional operation of the race course with an international licence does not require to have a noise emission higher by 5 dB on each day of the year, or to have, in the exemption system, a significantly higher noise emission (65 and 70 dB) even during a continuous period of as much as 40 days. Based on the above, the Constitutional Court annulled as of 31 December 2018 the special rules applicable to the noise originating from race courses with international licence. Judge dr. Imre Juhász attached a dissenting opinion to the decision and Judges dr. Mária Szívós, dr. Egon Dienes-Oehm and dr. András Varga Zs. joined to it.