a) Hungary / b) Constitutional Court / c) / d) 29-04-1997 / e) 30/1997 / f) / g) Magyar Közlöny (Official Gazette), 37/1997 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Market economy.
Institutions - Legislative bodies - Status of members of legislative bodies.
Fundamental Rights - General questions - Entitlement to rights.
Fundamental Rights - Equality.
Fundamental Rights - Civil and political rights - Right to private life.
Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.
Fundamental Rights - Economic, social and cultural rights - Freedom of contract.
A provision stipulating that current Members of Parliament can keep their «incompatible» positions, provided the second post was obtained before the representative was elected is unconstitutional.
The petitioners contend that some of the provisions of the conflict-of-interest amendment to the Law on «Regulating the Legal Status of the Members of Parliament» are unconstitutional.
The petitioners assert that the bill's distinction between private and public companies is unconstitutional, since this kind of distinction violates Article 9.1 of the Constitution according to which Hungary is a market economy where state and private property receive equal treatment. In addition, the petitioners claimed that these amendments restricted economic competition ensured by Article 9.2 of the Constitution, because companies with Members of Parliament in their management must now refrain from public procurement activity. According to the petitioners, the law in question violates privacy and rules protecting personal data by requiring parliamentary representatives to make essentially private information available to the public or to a parliamentary committee. The petitioners also contend that the provision of the Law includes an unconstitutional distinction, according to which current Members of Parliament could keep their «incompatible» positions, provided the second post was obtained before the representative was elected, but Members who had taken up «incompatible» posts after their election to Parliament would now have to step down from these positions.
The Constitutional Court found some parts of the petition justified. The reasoning of the Court recalled a previous decision on incompatibility. In Decision 55 of 1994 (X.10) (see Bulletin 1994/3 [HUN-1994-3-017]) the Court stated that the most important cases of incompatibility of the office of Member of Parliament are listed in the Constitution, which also entitles the legislature to determine further cases of incompatibility. However, while defining these further cases of incompatibility the legislation must not impose any limitations on the essential content and meaning of fundamental rights.
According to the Constitutional Court there is no direct connection between the rules regulating some positions «incompatible» with the office of the Member of Parliament and Articles 9.1 and 9.2 of the Constitution. The aim of the Amendment is not to differentiate between state and private companies concerning the incompatibility of a parliamentary representative. Thus, it is not unconstitutional that the law defines some positions as «incompatible» with the function of a representative, since the profits of the companies (regardless of the fact that it is private or state property) are closely linked to government activity and rely heavily on government contracts.
The Court did not hold unconstitutional the provision according to which a Member of Parliament is excluded from holding important posts in companies defined by the Act on Public Procurement. This regulation does not restrict the company's right either to conclude a contract or to participate in public tendering procedures determined by the Act. However, if as a result of a public tendering procedure the parties conclude a contract and because of the contract the position of a parliamentary representative (who holds an important post in the company in question) becomes «incompatible», the Member of Parliament should terminate the existing cause of incompatibility. This obligation of the representative does not have any effect on the company's right of contractual freedom and its situation in economic competition.
The petitioners contend that the amendment to the Law «Regulating the Legal Status of the Members of Parliament» is unconstitutional due to the fact that the representatives are required to disclose their property, income and business interests.
The Court found this part of the petition unfounded. According to the Court, the right to privacy of personal information is not an absolute one. The legislature could prescribe the public disclosure of personal records, and this limitation on the right to privacy of personal information is constitutional if it fulfils the constitutional requirement concerning the limitation on the essential contents and meaning of fundamental rights. The aim of the disclosure of a Member of Parliament's business interests is that the representative's property interests should be transparent.
The Constitution does not regulate the «incompatibility» between the office of the Member of Parliament and some positions in either private or State companies, therefore the legislature has a discretion on determining the representatives' obligation for supplying data concerning their business interests. Taking into account all the abovementioned facts, the Court held that limitations on informational self-determination under the contested provisions are in proportion with the aims set to be achieved.
With regard to the fourth part of the petition, the Court held that the provision according to which - as an exception to the rule - the current Members of Parliament could keep their «incompatible positions» includes an unconstitutional distinction on the basis of the time when the representative was elected. This regulation differentiates between persons who are in the same legal position, since both the representative who had taken up «incompatible» position after their election to Parliament and the MP who provided the second post was obtained before the MP was elected, assumed lawfully their positions in a company. Preferring the representative who had taken up the «incompatible» post prior to the election is not affirmative action. According to the Court, positive discrimination is applicable if a social aim or a constitutional right could be enforced only in a way that the equality in the narrower sense could not be achieved.
One of the Constitutional Court Justices wrote a dissenting opinion, in which he stated that it is in conformity with the Constitution and the decisions of the Constitutional Court concerning affirmative action, that the legislature enacted the provision according to which the current Members of Parliament could keep their «incompatible» positions, provided the second post was obtained before the representative was elected.