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Decision 3065/2022 (II. 25.) AB
Constitutional complaint against the Government Decree No. 446/2021 (VII. 26.) on the measures necessary to ensure the safety of air transport during a state of danger and the smooth transport of equipment essential for COVID protection (right of strike)
The Constitutional Court rejected the constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling section 1 of the Government Decree No. 446/2021 (VII. 26.) on the measures necessary to ensure the safety of air transport during a state of danger and the smooth transport of equipment essential for COVID protection. According to the contested provision, in addition to the organisations defined in section 3 (2) of Act VII of 1989 on Strike, in the interests of national defence and national security, no strike may be called by the organisation responsible for the provision of air traffic control services operating a system element designated by the sectoral designating authority for national defence systems and installations as a national critical system element in the interests of national defence. The petitioners were employed as air traffic controllers and their employer was designated until 1 December 2025 as a national critical system element by the Department of Aviation Risk Assessment Authority of the Ministry of Innovation and Technology. In the petitioners’ view, the contested provision completely excludes them from exercising the right to strike, as enshrined in the Fundamental Law, and is therefore contrary to the Fundamental Law. The Constitutional Court found in its decision that the regulation concerns an essential service of general interest. As regards the scope of subjects, it applies to persons with a special status, i.e. employees working for an organisation designated as a national critical control element in the interest of national defence, operating an element responsible for the provision of air traffic control services. It could not be established, on the basis of the content of the petition, that the contested provision was not capable of contributing to the fight against the state of danger during the period of the special legal order. As also indicated in the submission of the competent minister, the purpose of the regulation is to ensure the full and uninterrupted operation of the air traffic service during the state of danger, in order to contribute to the full implementation of the measures necessary to manage the epidemic and to mitigate and combat its consequences. The absence of this, the “provision of still sufficient services” under the Strike Act, may entail a risk which does not make it unnecessary to prohibit the exercise of the right to strike during the state of danger as provided for in the Decree. The panel of the Constitutional Court, therefore, rejected the constitutional complaint.