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Mónika MERCZ: Some remarks on Article P) of the Fundamental Law of Hungary


Introduction


One of the most important issues we must deal with in 2021 is climate change and its effect on a global scale. There are several treaties aiming to preserve the environment’s well-being. In the case of the European Union Green Deal and Green Transitions became a priority under the UVDL Commission. A huge milestone was reached in July of 2020 because it was the first time that the budget was linked not only to the rule of law but also to environmental protection, which shows that action has begun at EU level. It is equally essential to implement similar regulations on a national level. Hungary can be seen as a pioneer when it comes to these issues as in the spirit of “conservative green policy”, the country’s Fundamental Law contains the concept that natural resources must be preserved for future generations, as is set out in Article P).[1]


According to the Fundamental Law, arable land and forests are part of the common heritage of the Hungarian nation, and their protection and maintenance is a priority on a constitutional level. This is why a cardinal Act[2] sets out the limits and conditions for acquiring and utilizing ownership of arable land and forests to achieve these goals. The purpose of the second paragraph of Article P) is therefore to ensure the stability of the relevant legislation by requiring the pivotal legislative adoption of this subject.[3]

In this essay I shall concentrate on the first paragraph of the regulation, which states that natural resources are seen on a constitutional level as part of a concept called the common heritage of the nation. This heritage is to be preserved for the future generations. This does not mean that we can decide the supposed interest of future generations, but that our duty is to retain the opportunity for choice for them.[4] While under the previous Constitution[5] only state obligations were emphasized in environmental protection, the Fundamental Law speaks of the obligation of “everyone”, so civil society and every single citizen, every natural and legal person is responsible for the protection of the environment.[6]


In addition to this new concept of common heritage helping with the preservation of the environment, I aim to showcase two principles related to Article P) as well: the precautionary principle and the principle of prohibition of regression.


This essay was written in order to shed light on two main issues: why do regulations such as Article P) need to be placed on the highest, constitutional level, and how do they effect environmental law today.


Why is the common heritage important?


When dealing with issues of environmental law in Hungary one thing to note is that the concept of a common heritage resonates strongly throughout the Fundamental Law. In the National Avowal it is stated that: We commit ourselves to promoting and safeguarding our heritage, our unique language, Hungarian culture and the languages and cultures of national minorities living in Hungary, along with all man-made and natural assets of the Carpathian Basin. We bear responsibility for our descendants and therefore we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources. This desire to preserve cultural, environmental and intellectual resources for future generations is reinforced strongly in Article P).[7] The content of the word “heritage” implies that the natural resources named in this Article are considered by the legislator not only as objects of commercial transactions, but also as vital functions and intergenerational aspects.[8] The natural resources are not listed exhaustively, only some elements considered to be of priority are named as examples.[9]


The common heritage of a nation can also be seen as a kind of opposition to the category of “common heritage of humanity” known in international law. According to the category of international law, all the peoples of the Earth could form a demand for the exploitation of the given natural resource, and its declaration as a heritage extending to the part belonging to the Hungarian nation is rather unusual.[10]


The Constitutional Court of Hungary emphasizes that since the preservation of the common heritage of the nation for future generations is the duty of the state, the legislator must not only consider the individual and common needs of the present generation when making decisions, but must also take into account the living conditions of future generations. In line with this requirement and responsibility, Article P (1) can be seen as both a universal sui generis obligation to protect the nation's common heritage and a guarantee of the right to a healthy environment as a fundamental human right.[11]


In my opinion this is why the regulation of Article P) absolutely needed to be placed in the Fundamental Law. Being a part of the constitutional norms of Hungary, it is prioritized in a way that allows it to grow in interpretation and usage in a wide range of cases. Another aspect of the importance of Article P) is that the Constitutional Court of Hungary can examine it in its cases. Over the years, several decisions have been made that are invaluable when it comes to protecting the environment and regulating the rightful usage of natural resources.


As I have mentioned before, there are two principles in strong connection with this Article that I have taken a look at in order to emphasize just how important Article P) and constitutional inclusion of environmental regulations are today. With this post it is my aim to showcase what exactly the two principles in question entail, how they further the goals set out in Article P), and how the Constitutional Court of Hungary uses them to develop the interpretation of environmental protection in its cases.


The effect of prohibition of regression


The prohibition of regression is also known as the non-derogation principle. It was developed by the Hungarian Constitutional Court’s Decision 28/1994. (V.20.) on the grounds of Article 18 and Article 70/D of the previous Hungarian Constitution.


This principle provides that lawmakers like the National Assembly or the Government shall not adopt legal provisions which are capable of decreasing the existing protection level of the environment.[12] From the environmental law’s point of view, this means that new regulations that could lead to a regression compared to the existing level of environmental protection must be avoided.[13] The only instance in which the legislator can withdraw from the achieved level of protection is if conditions under which a restriction of a fundamental right would be appropriate arise. A change in the system providing environmental protection shall not lead to a decrease in the level of protection under any other circumstance.[14]


In HCC Decision 16/2015. (VI. 5.) it is stated that the State does not enjoy the freedom to allow the general well-being of the environment to deteriorate or to allow the risk of deterioration.[15] Moreover, the State of Hungary may not reduce the level of environmental protection provided by law, its level must remain at least at the level prior to the amendment of the regulation, or rather it should increase.[16] The exception to this is if it is unavoidable in order to enforce another fundamental right or constitutional value,[17] in which case the degree to which the level of protection is withdrawn shall not be disproportionate to the aim pursued.[18]


2017’s Decision added new aspects to the previous Decision’s conclusions. A new development was that the principle must apply to the substantive, procedural and institutional rules of the environment as well.[19] A firm stance is taken on the issue of what would happen, should the State transfer natural resources to the new generation in a less than ideal state. The Constitutional Court proposes that it would essentially relieve the State of its obligations,[20] which is why the transfer of ‘damaged goods’ to future generations should be avoided.


One year later emerged a newer ayer of interpretation establishing that if the legal regulation moves from the application of the precautionary principle towards the subsequent sanctioning of possible damages, the legislator must prove that a planned regulation does not constitute regression,[21] and thus does not cause irreversible damage or create the possibility of such damage even in principle.[22] This principle shall always be enforced by the legislator within the existing legal framework.[23]


In 2018 it was stated that only regressions which may result in irreparable damage to nature or the environment are prohibited.[24] It does not apply to the designation of the level of protection, but it applies when the legislator derogates the already established limits of environmental protection in such a way that irreparable damaging processes may be set off.[25]


In 2019 this interpretation was further developed, as it was established that it must be examined whether the necessity or proportionality of the withdrawal can be justified in accordance with Article I (3) of the Fundamental Law.[26] It also counts as regression if a procedural guarantee of nature’s well-being is replaced by a substantive guarantee.[27]


Last year a new Decision contained that decreasing the prevalence of bureaucracy involved in an environmental action’s process cannot provide a basis for regressive measures. The obligation to notify the appropriate authorities about potential harm that may be caused to the environment is mandatory.[28]


The essential feature of the precautionary principle


The precautionary principle first appeared in cases related to the production of food and agriculture.[29] With its current interpretation’s application, the law now considers the production process and its possible harmful effects as well as the characteristic of the final product.[30]


The precautionary principle promotes an attitude of protection of the environment or human health. Even in the absence of a clear indication of harm or danger[31] we need to treat human activity as a potential threat. In the protection of the environment, serious or irreversible damage and the level of scientific certainty are the most important elements of the application of the principle.[32] The activity, for which the principle arises is not an environmental activity in the strict sense of the word, however, it extends to the cases in the field of plant and animal health and human health, where the impact on the environment is part of a more general expectation.[33]


In 2017 the Constitutional Court stated that it follows directly from the principles deriving from Article P) and Article XXI[34] of the Fundamental Law that the State must ensure that a particular measure does not result in the deterioration of the environment’s state.[35]


Later this interpretation progressed, claiming that the precautionary principle applies not only in the context of the prohibition of regression, but also independently. The legislator must consider risks which are likely to or certain to occur during the decision-making process.[36]


In 2018 the Constitutional Court stated that it must be examined whether there is a chance of damage occurring when making decisions about environmental issues.[37] Due weight must be given to this principle during decision-making. The Hungarian Constitutional Court interprets this principle in unity with the prohibition of regression and the principle of prevention.[38] The Constitutional Court has made this principle part of its regular practice,[39] so it follows that its importance in regards to environmental law is indisputable.


This was further proven in 2020, when the Constitutional Court made a Decision stating that legislators must always bear in mind that prevention is of decisive importance when it comes to the right to a healthy environment. The State’s duty is to ensure that the potentially damaging risks are identified through official permitting procedures, taking into account the precautionary and preventive principles.[40]


Conclusion


While due to its length, this essay cannot possibly encompass the widespread information with regards to Article P), nor can it begin to showcase the true importance of it, I hope that I was able to shed some light on the key elements of the issues at hand when it comes to environmental protection.


Based on the information presented, I can safely say that putting this regulation in the Fundamental Law has provided Hungary with a strong foundation for national environmental protection that also allows the use of natural resources to a safe extent. The constitutional protection succeeded not only in preserving Hungary’s values regarding the environment, but also in allowing the Constitutional Court to provide an increasingly high form of protection. The non-derogation principle plays a major role in achieving the objectives of Article P), as it limits the freedom of legislation from an environmental point of view. The precautionary principle must be taken into account when making decisions as well, mostly because of the Constitutional Court’s interpretation. This is how the core strength of both principles can be identified: they are checks and balances when it comes to what the State is allowed to do to our environment. No lengthy process to prove the risks to the environment if a certain measure is taken is required to prevent damage to nature, a more causal link is sufficient. This acts as a guarantee that the future generations get the heritage defined in Article P).


In conclusion, both Article P) and the two principles mentioned are constantly evolving through the Constitutional Court’s interpretation, creating a better balance between preserving our natural resources for our children and using them now in our lifetime. To my mind this is in accordance with the true aim of Hungary’s Fundamental Law.

[1] http://njt.hu/translated/doc/TheFundamentalLawofHungary_20201223_FIN.pdf [2] Cardinal Acts are Acts, the adoption and amendment of which requires the votes of two thirds of the Members of the National Assembly present. [3] Andréka Tamás: Az Alaptörvény P) cikke védelmet ad vagy szükségtelenül korlátoz? Az Agrár-és Környezetjog és az Alaptörvény tervezett reformja, Miskolci Egyetem, 2020. február 14. [4] Sólyom László’s opening speech: The right to a healthy environment and the representation of the interests of future generations in the forthcoming Hungarian Constitution, 2011. In: http://jno.hu/hu/alk110214/Solyom_Laszlo_beszede_110214.pdf [5] Act XX of 1949, the previous Constitution of the Republic of Hungary was in force until January 1st, 2012. [6] Gáva Krisztián - Smuk Péter - Téglási András: Az Alaptörvény értékei – Tudástár, Budapest, Dialóg Campus Kiadó, 2017. 8-27. p. http://bmkszf.hu/dokumentum/2626/Alaptorveny_ertekkatalogus.pdf p. 17. [7] Gáva Krisztián - Smuk Péter - Téglási András: Az Alaptörvény értékei – Tudástár, Budapest, Dialóg Campus Kiadó, 2017. 8-27. p. http://bmkszf.hu/dokumentum/2626/Alaptorveny_ertekkatalogus.pdf p. 8. [8] Szilágyi János Ede: Változások az agrárjog elméletében?, Miskolci Jogi Szemle, 11. évf. 1. szám, 2016. p. 47. [9] Bobvos Pál – Farkas Csamangó Erika – Hegyes Péter – Jani Péter: A mező- és erdőgazdasági földek alapjogi védelme, In: Számadás az Alaptörvényről: Tanulmányok a Szegedi Tudományegyetem Állam- és Jogtudományi Kar oktatóinak tollából (szerk.: Balogh Elemér), Magyar Közlöny Lap- és Könyvkiadó, Budapest, 2016. p. 32. [10] Szilágyi János Ede: Változások az agrárjog elméletében?, Miskolci Jogi Szemle, 11. évf. 1. szám, 2016. p. 47. [11] HCC Decision 13/2018. (IX. 4.) Reasoning [13] [12] 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. p. 102. [13] Bándi Gyula: Környezeti értékek, valamint a visszalépés tilalmának értelmezése, Iustum Aequum Salutare 13, no. 2. 2017. p. 165. [14] Bándi Gyula, “Az elővigyázatosság elvének mai értelmezése,” Conference Speech in: Új kutatási irányok az agrár- és környezetvédelmi jog területén, Szegedi Egyetem, 2019. [15] HCC Decision 16/2015. (VI. 5.) Reasoning [109] [16] HCC Decision 16/2015. (VI. 5.) Reasoning [111] [17] HCC Decision 16/2015. (VI. 5.) Reasoning [8] [18] HCC Decision 16/2015. (VI. 5.) Reasoning [80] [19] HCC Decision 28/2017. (X. 25.) Reasoning [28] [20] HCC Decision 28/2017. (X. 25.) Reasoning [32] [21] HCC Decision 13/2018. (IX. 4.) Reasoning [63] [22] HCC Decision 13/2018. (IX. 4.) Reasoning [62] [23] HCC Decision 13/2018. (IX. 4.) Reasoning [4] [24] HCC Decision 17/2018. (X. 10.) Reasoning [91] [25] HCC Decision 17/2018. (X. 10.) Reasoning [92] [26] HCC Decision 4/2019. (III. 7.) Reasoning [44] [27] HCC Decision 4/2019. (III. 7.) Reasoning [104] [28] HCC Decision 14/2020. (VII. 6.) Reasoning [184] [29] Olajos István: The precautionary principle in the practice of the Hungarian Constitutional Court and connected agricultural innovations, Zbornik radova Pravnog fakulteta Novi Sad, 2019. p. 1394. [30] Diána Bánáti: Az EU élelmiszer politikájának változása, Élelmiszerbiztonság a nemzetközi kereskedelem területén (eds. Diána Bánáti, József Popp), AK I Tanulmányok, Budapest, 2007. p. 32-33. [31] Bándi Gyula, “Az elővigyázatosság elvének mai értelmezése,” Conference Speech in: Új kutatási irányok az agrár- és környezetvédelmi jog területén, Szegedi Egyetem, 2019. [32] Bándi Gyula: Gondolatok az elővigyázatosság elvéről In: Jogtudományi Közlöny 2013. évi 10. szám p. 474-476. [33] Wybe Douma, The Precauttionary Principle Its Application in International, European and Dutch Law, Rijksuniveriteit, Groningen, 2003. [34] Article XXI (1) Hungary shall recognise and endorse the right of everyone to a healthy environment. (2) Anyone who causes damage to the environment shall be obliged to restore it or to bear the costs of restoration, as provided for by an Act. (3) The transport of pollutant waste into the territory of Hungary for the purpose of disposal shall be prohibited. [35] HCC Decision 28/2017. (X. 25.) Reasoning [49] [36] HCC Decision 13/2018. (IX. 4.) Reasoning [20] [37] HCC Decision 17/2018. (X. 10.) Reasoning [91] [38] HCC Decision 17/2018. (X. 10.) Reasoning [87] [39] HCC Decision 4/2019. (III. 7.) Reasoning [74] [40] HCC Decision 4/2019. (III. 7.) Reasoning [100]

Mónika MERCZ: Hungarian fourth year law student at the University of Miskolc, currently in her last semester of an English Legal Translation Course. Mónika is the Secretary General of European Law Students’ Association (ELSA) Miskolc, a recipient of the National Higher Education Scholarship 2020, and is currently taking part in Aurum Foundation’s Mentoring Program. Having done several publications, her work mainly focuses on environmental law, constitutional law and data protection. She is a member of the Constitutional Discourse’s Editorial Board.


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