a) Hungary / b) Constitutional Court / c) / d) 28-04-2010 / e) 51/2010 / f) / g) Magyar Közlöny (Official Gazette), 2010/63 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.
General Principles - Certainty of the law.
Keywords of the alphabetical index:
Law, entry into force.
The first two books of the new Civil Code did not come into force on 1 May 2010, after the Constitutional Court declared the Act on the entry into force unconstitutional. The reason for this was that the sixty-day deadline by which the authorities and all interested parties should have examined the new provisions that were to take effect in the first stage was "excessively tight". Moreover, the Court held that the new Civil Code's "two-stage entry into force" would have required the relevant authorities to accommodate a multitude of legislative changes twice within a short period of time. This would have run counter to the principle of legal certainty.
The petitioners, including the director of the parliamentary group representing the winning party, asked the Court to direct the repeal of the new Civil Code on the basis that the time span for its enactment was too short.
The first two books of the new Civil Code were to have entered into force on 1 May 2010, and the other five books were to have become effective as of 1 January 2011.
The new Civil Code was meant to introduce several new legal institutions into Hungarian civil law and to amend several existing regulations. The first book contained the general provisions; the second book contained the law relating to the individual. These provisions include reforms relevant to persons with disabilities. The legal status of people under full guardianship would have been transformed into a joint decision-making arrangement between them and their guardian. The second book of the new Civil Code would also have introduced significant changes to the basic regulations and the right to damages for infringement of personal rights.
During the proceedings, the Constitutional Court did not examine the actual content of the new provisions which regulate fundamental areas of life. The Constitutional Court simply pronounced the Act on the entry into force unconstitutional. According to the Court sixty days was too short a time span to allow those responsible for implementing the new Civil Code to be properly trained, which seriously endangered legal certainty (there were sixty days between the publication of the Act on entry into force and the Civil Code's entry into effect). Secondly, the new and old Civil Codes would have applied simultaneously for eight months, which would have caused confusion.
Consequently, the Court ruled that the new Civil Code could not enter into force on 1 May 2010.
Justice László Kiss attached a concurring opinion to the judgment. He agreed that the simultaneous application of the new and the old Civil Codes would have caused confusion in practice, but held that the Court should have counted the days available for formulating the application of the new Code from the day of the new Code's publication (20 November 2009), and not from the day of the publication of the Act on the entry into force.
Justice András Bragyova attached a dissenting opinion to the decision. In his opinion, the prohibition of immediate entry into force is a formal requirement. Deciding on the given Act's entry into force is within the competence and responsibility of the legislature. The Court can overrule this decision only in case of obvious misinterpretation. This was not the case with the new Code Civil. The Code was enacted following years of intense debate and the Hungarian legal community was involved in drafting the reforms.