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Decision 3002/2020. on conditions of performing tour operator activity
Constitutional complaint against Section 5 (4) to (5) of the Government Decree No. 213/1996. (XII. 23.) Korm. on the tour operator and travel agency activities and the judgement No. Kfv.III.37.192/2017/7 of the Curia (conditions of performing tour operator activity)
The Constitutional Court rejected the constitutional complaint aimed at establishing that a provision of the government decree on the tour operator and travel agency activities is in conflict with the Fundamental Law and at its annulment. In the case underlying the petition, the Hungarian Trade Licensing Office Authority of Trade, Tourism Department notified the petitioner on carrying out an official supervision as the petitioner had failed to comply with its obligation of providing data, namely it had failed to verify that the person responsible for the travel enterprise activity had been employed in accordance with the laws. Subsequently the authority deleted the petitioner from the official register of enterprises engaged in tour operator and travel agency activity, by noting that as soon as it verifies its authorisation to carry out this activity and performs the reporting of the activity, it shall become again entitled to carry out the activity in question. In its judgement, the Curia rejected the petitioner’s review application. According to the petitioner’s arguments, it cannot continue its tour operator activity due to the application of the challenged provisions of the government decree, as the condition laid down therein practically excludes its entry to the market, as a small and medium sized enterprise with lower revenue, and it cannot engage in an enterprise activity in addition to its other gainful economic activity. The Constitutional Court found that the provisions of the law under review do not hinder maintaining the enterprise, and at the same time the proportionate restrictions help the professional and safe operation. Indeed, the challenged provisions of the decree are aimed at securing that the relevant enterprises, engaged in a special trade activity (tour operator and travel agency), employ in the appropriate term of the working hours – for the purpose of protecting the travellers – a professionally fit person, who can be expected to carefully perform the activity on high level, due to his qualification and expertise. The provisions of the applicable laws pertaining to the person engaged in the activity can only be enforced, if the professional employee is available in the required time frame (twenty hours a week). After exploring the nature of the restriction, the Constitutional Court evaluated the level of the restriction enforcing the professional criteria mentioned by the Constitutional Court, therefore, the provision of the government decree challenged by the petition is not considered to unnecessarily and disproportionately restrict the right to enterprise, and for this reason the Constitutional Court rejected the petition that alleged the breach of the Fundamental Law.