HUN-2006-3-006

a) Hungary / b) Constitutional Court / c)  / d) 03-10-2006 / e) 42/2006 / f)  / g) Magyar Közlöny (Official Gazette), 2006/122 / h) .

Keywords of the Systematic Thesaurus:

03.12

General Principles - Clarity and precision of legal provisions.

03.18

General Principles - General interest.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.39

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

05.03.39.01

Fundamental Rights - Civil and political rights - Right to property - Expropriation.

05.03.39.03

Fundamental Rights - Civil and political rights - Right to property - Other limitations.

Keywords of the alphabetical index:

Electronic communications, antenna, establishment / Easement / Telecommunication, antenna, establishment.

Headnotes:

The Constitutional Court acknowledged the great demand for mobile telephones and stated that, as a general rule, there was a public interest in the establishment of electronic telecommunications services and antennae. However, the legislation did not define the type of public interest which could justify restrictions on property rights.

Summary:

I. Almost two hundred petitioners asked the Constitutional Court to review certain provisions of Act LXXII of 1992 on Telecommunications (hereinafter described as "the Act"), and Act LXVI of 1999 amending it (described here as "the Amending Act"). They pointed out that, under these provisions, restrictions upon or withdrawal of property rights to further the interests of mobile telecommunication providers are not in the public interest, neither are such circumstances exceptional enough to justify it. They suggested that the provisions contravened Article 13 of the Constitution. Building towers and other structures for the purposes of mobile telecommunication is in conflict with environmental and health protection, and is prejudicial not only to the owners of the land where these structures are placed, but to others as well.

II.1. The Constitutional Court stated that there had been major developments in fields such as telecommunications since the political transition. In 1992, the Act introduced a system of concessions, to replace the monopoly on infrastructure and services. Parliament intended to put an end to the monopoly enjoyed by telecommunication providers, to open the telecommunications market to international providers and to bring Hungarian legislation into line with EU regulations. It accordingly passed Act XL of 2001 on Telecommunications, which annulled the Act. In 2003 another Act on telecommunications was passed, namely Act C of 2003 on Electronic Communications. This in turn annulled the Act of 2001. Articles 94-96 of the Electronic Communications Act are broadly similar to the provisions under dispute. The Court therefore reviewed Articles 94-96.

2. In Decision no. 64/1993, the Constitutional Court emphasised that because of the nature of property protection, the central point of any enquiry into the constitutionality of state intervention is proportionality between ends and means. In this case, public interest has to be weighed against the restriction on property. Article 13.2 of the Constitution merely requires the "public interest" to justify expropriation; if monetary compensation is provided, there is no need to demonstrate a more compelling and justified ''necessity'' for constitutional purposes.

In the present case, the Court observed that, several years after political transition, a more extensive protection of property rights is needed than was the case in 1993. The Constitution distinguishes the right to property from other fundamental rights. Article 13.2 of the Constitution allows for it to be withdrawn in full, in certain circumstances. Article 13.1 of the Constitution sets out the general principle of the right to property, but does not deal with restrictions on the right. Article 8.2 of the Constitution deals with the general topic of restrictions on fundamental rights. The same rules and court procedures have to be followed when restrictions are placed on the right to property, and Article 13 of the Constitution must be taken into account. A peculiarity of Article 13.2 of the Constitution is that it specifies public interest as a precondition of the full withdrawal of the right to property. Restrictions on private property should be defined by statute in such a way that the court can check the necessity for any restriction on public interest grounds in a particular case. Proportionality is also an important factor: the importance of the aim to be served by restriction.

3. Article 188.12 of the Electronic Telecommunications Act defines "electronic communications service' as objects associated with wireless connection, antennae, and antennae support structures. Article 94.1 provides for the installation of electronic communication facilities. Article 94.2 allows for the installation of electronic communications equipment on public land, or, where this is not possible, on private land. There is provision under Article 95.1 for limits on a proprietor's use of his property, if the installation of electronic communications service has not been agreed. The Act does not determine the actual conditions of the restriction; it simply refers to public interest. Article 95.2 allows for adequate compensation in the case of restriction, and refers to provisions of the Civil Code, which allow the proprietor to request compulsory purchase, or expropriation, of his or her property, under suitable circumstances. However, there is no guidance within this supplementary provision as to circumstances under which restrictions on property rights are necessary in the case of a specific property.

Article 95.3 allows the authorities to claim right to use or an easement at the builder's request where electronic communication services are to be built on a particular property or are already in situ. It does not, however, specify conditions for restricting the right to property; it simply refers to public interest. The Court therefore took the view that the provision was unconstitutional. The Court also observed that it was not possible to deduce whether public interest would extend to the owners of neighbouring properties. It accordingly ruled that the restriction on property rights was disproportionate, and unconstitutional.

Judge András Holló submitted a dissenting opinion to the decision. In his view, the version of the Electronic Telecommunications Act currently in force enabled authorities to impose restrictions on property rights in an unpredictable and arbitrary way. The Court ought, therefore, to have ruled that there was an unconstitutional omission to legislate because of the lack of guarantees for property rights.

He was concerned that the Court's decision linked the standards developed for fundamental human rights and restrictions on property rights. This could result in a relaxation of the regime for protecting human rights. Introducing a loosely-defined term of public interest into Article 8.2 of the Constitution could make it easier to restrict fundamental rights. Judge András Bragyova concurred with the dissenting opinion.

Judge Péter Paczolay also submitted a dissenting opinion to the decision. He said that the Electronic Telecommunications Act afforded the telecommunications authority to impose legal restrictions on the use of a property. Simply referring to public interest in a particular case was not enough. The authority however may impose legal restrictions on the use of property if in the given case the restriction is clearly justified by public interest and if the restriction is in accord with Articles 94.2, 94.3 and 95.1 of the EC Act. Therefore, Articles 95.1 and 95.3 of the EC Act were not against the Constitution.

Furthermore, in his view, the Court distinguished the requirements for the constitutional restriction on property rights from Article 8.2 of the Constitution in 1993. This was partly because the right to property is the only fundamental right within the Court's area of competence which can be restricted by reference to public interest. The Court should not depart from this practice without adequate reason.

Cross-references:

- 64/1993, Bulletin 1993/3 [HUN-1993-3-017].

Languages:

Hungarian.