HUN-2000-3-006

a) Hungary / b) Constitutional Court / c)  / d) 31-10-2000 / e) 37/2000 / f)  / g) Magyar Közlöny (Official Gazette), 107/2000 / h) .

Keywords of the Systematic Thesaurus:

02.01.03.02.01

Sources - Categories - Case-law - International case-law - European Court of Human Rights.

02.01.03.02.02

Sources - Categories - Case-law - International case-law - Court of Justice of the European Union.

03.17

General Principles - Weighing of interests.

03.19

General Principles - Margin of appreciation.

05

Fundamental Rights.

05.01.01.04.01

Fundamental Rights - General questions - Entitlement to rights - Natural persons - Minors.

05.03.04

Fundamental Rights - Civil and political rights - Right to physical and psychological integrity.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

05.03.24

Fundamental Rights - Civil and political rights - Right to information.

05.03.44

Fundamental Rights - Civil and political rights - Rights of the child.

05.03.45

Fundamental Rights - Civil and political rights - Protection of minorities and persons belonging to minorities.

05.04.19

Fundamental Rights - Economic, social and cultural rights - Right to health.

05.05.01

Fundamental Rights - Collective rights - Right to the environment.

Keywords of the alphabetical index:

Advertising, commercial / Advertising, ban / Speech, commercial.

Headnotes:

The failure of the Act on Commercial Advertising to require a complete ban on cigarette advertising is not contrary to the right to a healthy environment (Article 18 of the Constitution) and the right to health in Article 70/D of the Constitution.

Summary:

The petitioner challenged the constitutionality of Article 12.1 of the Act on Commercial Advertising, under which advertising of tobacco products or alcoholic beverages is prohibited:

a.     in printed materials mainly aimed at children or juveniles;

b.     on the front cover of printed materials;

c.     in theatres or cinemas before 8pm, as well as immediately preceding programmes for children or juveniles, during the full duration thereof, and immediately afterwards;

d.     on toys and the packaging thereof;

e.     in institutions of public education, health institutions and within 200 meters from the entrance thereof.

In the petitioner's view, the Act's failure to prohibit tobacco advertising infringed the constitutional right to health and to a healthy environment.

The Court in its Decision 1270/B/1997 (Bulletin 2000/2 [HUN-2000-2-003]) held that commercial speech is protected by the Constitution's freedom of expression clause. However, taking into account the well known detrimental health effects caused by tobacco consumption, the Court emphasised that it is permissible in the case of tobacco advertising that commercial speech be subject to greater state regulation than non-commercial speech. The public should be properly informed about the health hazards that flow from the consumption of tobacco and the state is obliged to protect the interests of children (Article 16 of the Constitution).

Under Article 18 of the Constitution, the Republic shall recognise and enforce everyone's right to a healthy environment. Article 70/D of the Constitution contains the right to the highest possible level of physical and mental health.

The Court, in its Decision 28/1994 (Bulletin 1994/2 [HUN-1994-2-009]) emphasised that the right to a healthy environment under Article 18 of the Constitution was neither an individual fundamental right nor merely a constitutional duty or state goal for which the State might freely choose any means of implementation. Nor did it amount to a social right but rather to a distinct fundamental right dominated and determined by objective institutional protection. The right raised guarantees for the implementation of state duties in the area of environmental protection, including the conditions under which the degree of protection already achieved might be restricted, to the level of a fundamental right. In fact the right to a healthy environment was a part of the objective, institutional aspect of the right to life. Similarly, the right to health under Article 70/D of the Constitution is not a fundamental right. Article 70/D.2 of the Constitution declares the duty of the state to organise and maintain health care institutions and medical care. Thus, it does not follow that the state should have completely banned cigarette advertising merely on the basis of these two .

The constitutional basis of state regulation in the case of tobacco advertising is the obligation of the state to protect life under Article 54 of the Constitution. By applying a partial ban on tobacco advertising, the state fulfilled its duty to protect human life and health. A complete ban on cigarette advertising does not directly follow from the Constitution. Moreover, the ban on a form of expression should be reasonable and justified by the obligation of the state to protect the life and the interests of children. The state could not be held responsible for protecting Hungarians from health risks associated with tobacco use. The duty of the state is to inform people about the possible health risks so that, properly informed, they can decide on the use of tobacco products. In addition, the state has the duty to protect the non-smoking public.

The Court referred to the decision of the European Commission of Human Rights in Wöckel v. Germany. In that case, the Commission held that, bearing in mind the competing interests of the applicant non-smoker, the interests of other individuals to continue smoking, and the margin of appreciation left to national authorities, the absence of a general prohibition on tobacco advertising and on smoking did not amount to a violation of the applicant's rights under  Articles 2 and  8 ECHR. The Constitutional Court also considered the relevant directives of the European Union and the Judgment of the Court of Justice delivered on 5 October 2000 on the advertising and sponsorship of tobacco products.

Supplementary information:

Article 8 of Act I of 2001, amending Act LVIII of 1997, on Commercial Advertising enacted by the Parliament on 19 December 2000 requires a complete ban of tobacco advertisement. The Hungarian Association of Commercial Advertising announced that they will apply to the Constitutional Court asking for constitutional review of the provision in question.

Languages:

Hungarian.