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Mónika MERCZ: Constitutional or environmental law?

Different interpretations of the precautionary principle with regard to Article P) of the Fundamental Law of Hungary


As I have already remarked in one of my previous articles, the Fundamental Law of Hungary contains an Article dedicated to preserving the environment for future generations. I have done extensive research on this Article P) (1), and made a point of mentioning a particularly important principle that governs how we interpret the Article. While there are several related principles which we can mention when discussing this issue, the one which I would like to elaborate on is the precautionary principle.


The precautionary principle, together with the prevention and the restoration principles determine human activity in relation to the environment.[1] These three principles can also be interpreted collectively,[2] but it is the precautionary principle which concerns the most common human behavior.[3] The principle stipulates that if the effect of a certain human behavior - for example a decision taken by the governing bodies - on the environment or certain elements of it cannot be shown, then the human behavior in question shall be considered something that inherently poses a potential danger to (the elements of) the environment.[4] Consequently, the legislator must consider risks which are likely or certain to occur during the decision-making process.[5] The precautionary principle is now seen as one that represents an approach to the protection of the environment or human health based on taking precautionary measures even when there is no clear indication of harm or threat thereof,[6] so that we should treat human activity as a potential threat.[7] The foundation of the principle is that our knowledge of science is limited, thus the time of protecting our environment must begin as soon as possible.[8]


While all of this is undisputed as far as what the principle itself entails, different scholars have expressed a variety of views on what the precautionary principle can govern. Notably, Gyula Bándi, the current Ombudsman for Future Generations, has a strong opinion on the issue. According to him, the precautionary principle is not only an environmental but also a constitutional principle.[9] This means that in his interpretation the principle can be applied not only to issues relative to environmental law, as we have seen it and been discussing its uses, but also to constitutional law as a whole. If the precautionary principle would be applied in the entirety of constitutional law, as he proposes, that would cause a huge shift. To my mind, it would make decision-making processes much too long as well as unstable. I personally do not think that the usage of this principle on such a wide scale could lead to further preservation of our environment and the future of the next generations. Currently, the application of the precautionary principle is working and while its expansion in theory could lead to a better level of preservation, we must think about the issue in realistic and practical terms. Rather than reaching its original goal, it would slow down development and public administration as a whole. If this approach would become legally enforceable, the proportionality test should best be applied not just in terms of whether an activity has a significant impact on the environment, but also to determine whether this principle can be applied with regard to a specific issue. I would suggest limiting its use to intersectional cases where environmental and constitutional law issues are both concerned, such as in the case of Decision 16/2015. (VI. 5.) of the Constitutional Court of Hungary.


Despite his current objective to broaden the interpretation of the precautionary principle, I have done research on the practice of the Ombudsman for Future Generations, without uncovering any examples of such broad interpretation. Taking a look at the practice of the Ombudsman for Future Generations, we can see that the precautionary principle does not appear in every report, motion or resolution. Sometimes the basis of reference is limited to Articles XX and XXI of the Fundamental Law.[10] The decisions of the Constitutional Court[11] are cited many times in all available annual reports on the activities of the Commissioner for Fundamental Rights, which demonstrate the depth of the relationship between the two bodies. This is especially important as we can see that the Constitutional Court also applies this principle in environmental issues. In 2018, the Constitutional Court stated that the chance of damage occurring when making decisions about environmental issues shall always be examined.[12] The Constitutional Court also stipulated in its interpretation that due weight must be given to this principle in the course of decision-making.[13] This all ties back to how the Constitutional Court sees the precautionary principle as a specifically environmental principle. I am curious how the process of legislation as well as the entirety of public administration would change, were the precautionary principle always present as an obstacle when new legislation was about to be introduced. Because this principle raises the standard of protection to the level of possible endangerment without sufficient scientific proof, it would be exceedingly easy to halt a legislation by summoning the precautionary principle, were it ever widely applied.


In the examination of the activities of the previous Ombudsmans, as well as the current Deputy Commissioner for the Protection of the Interests of Future Generations - Dr Gyula Bándi-, the precautionary principle has been invoked in 17 of the last 27 years, a total of 42 times. Since 2012, the application of the principle has grown exponentially, appearing every year.[14] Regarding environmental administrative issues, the need for a broad interpretation as a goal is clearly visible; the Ombudsman for Future Generations would prefer the interpretation as a constitutional principle. The non-derogation principle also raises interesting questions, as its wider interpretation in a stronger concept is also more and more commonly desired. This principle, in my opinion, could be a better fit for application in the context of constitutional law issues, however, I would advise caution in it becoming much more pronounced as well.


Another interesting piece of information to note is how different the current situation of Hungary is compared to the United States’ stance on the use of the precautionary principle. While we aim to implement further precautionary measures into public law as a whole, Gail Charnley and E. Donald Elliot write about the principle of legality, and how extensively one must present factual reports proving significant risk before any measure can be taken to counter a potentially harmful action. While I wholeheartedly agree with E. Donald Elliot’s and Daniel C. Esty’s view, that “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”, I also think that the right way to implement the precautionary principle is only within the confines of environmental law, simply because of its very nature. I would be very interested in pinpointing where the fine line between the lack of use of the precautionary principle that characterizes the USA’s approach, and the increased interpretation of the principle that threatens to overspill into public administration lies.


To sum up, I have to say that even the Ombudsman for Future Generations’ practice raises questions about the applicability of the strong concept[15] of the precautionary principle. At the end of the day, our most noble end goal is to preserve the environment, natural resources and our culture itself for future generations, but we must be careful to preserve the present’s development, too, in the process.

[1] Olajos István: The precautionary principle in the practice of the Hungarian Constitutional Court and the connected agricultural innovations, Zbornik radova Pravnog fakulteta Novi Sad 53(4):1391-1412, 2019. DOI:10.5937/zrpfns53-22769 [2] Fodor László: Környezetjog, Debreceni Egyetemi Kiadó, Debrecen, 2014; Fodor László: ”A környezetjog alapelvei”, Környezetjog (ed. László Fodor), Bíbor Kiadó, Miskolc, 2003, pp. 40-43. [3] Timothy O’Riordan, James Cameron, Interpreting the Precautionary Principle, Earthscan, London, New York, 1994. [4] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrár- és környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged. [5] HCC Decision 13/2018. (IX. 4.) Reasoning [20] [6] Stuart Bell, Donald McGillivray, Ole W. Pedersen, Environmental Law, Oxford University Press, New York, 2013. pp. 68. [7] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrárés környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged. [8] Fodor László: Környezetvédelmi jog és igazgatás, Kossuth Egyetemi Kiadó, Debrecen, 2007 pp. 48. [9] A jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes állásfoglalása, AJB-3658-2/2018. pp. 4. [10] Közös jelentés egy vasútállomáson működő hangosbemondó kapcsán AJB-4642/2020. pp. 2-3. [11] Particularly HCC Decision 28/2017. (X. 25.), HCC Decision 13/2018. (IX. 4.), HCC Decision 17/2018. (X. 10.), HCC Decision 17/2018. (X. 10.), HCC Decision 4/2019. (III. 7.) and HCC Decision 4/2019. (III. 7.) [12] HCC Decision 17/2018. (X. 10.) Reasoning [91] [13] HCC Decision 17/2018. (X. 10.) Reasoning [87] [14] Mercz Mónika: Az Alaptörvény P) cikkének elemzése a jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes gyakorlatának tükrében (konzulens: Olajos István), Tudományos Diákköri Dolgozat, Miskolc, 2021. pp. 19. [15] Szilágyi János Ede: The precautionary principle’s ’strong concept’ in the case law of the Constitutional Court of Hungary, Lex et Scientia No. XXVI, Vol. 2/2019. pp. 88-112.

 

Mónika MERCZ: Senior undergraduate law student at the University of Miskolc (Hungary). As a certified English legal translator, she is currently working as a project coordinator at the Mathias Corvinus Collegium (Budapest, Hungary) and is a member of the Editorial Board of the legal blog Constitutional Discourse. Mónika is the Secretary General of Miskolc (Hungary) branch of the European Law Students’ Association (ELSA). In recognition of her academic achievements, she was a recipient of the National Higher Education Scholarship 2020.

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