HUN-2011-1-001

a) Hungary / b) Constitutional Court / c)  / d) 18-02-2011 / e) 8/2011 / f)  / g) Magyar Közlöny (Official Gazette), 2011/14 / h) CODICES (Hungarian).

Keywords of the Systematic Thesaurus:

02.01.01.03

Sources - Categories - Written rules - Law of the European Union/EU Law.

03.10

General Principles - Certainty of the law.

04.06.09.02

Institutions - Executive bodies - The civil service - Reasons for exclusion.

05.04.09

Fundamental Rights - Economic, social and cultural rights - Right of access to the public service.

Keywords of the alphabetical index:

Government officials / Civil servant, dismissal, reason.

Headnotes:

Legislation that allows employers in the public administration to dismiss government officials without giving a reason is unconstitutional.

Summary:

I. In summer 2010 the governing two-thirds majority adopted the Act on Government Officials, making it possible for employers to dismiss government officials without having to provide reasons for their actions. The then president referred the law to Parliament for reconsideration, arguing that the legislation conflicted with EU law. After the Act had been passed for the second time with the same content, several trade unions and civil rights NGOs challenged it before the Constitutional Court.

II. First, the Constitutional Court examined the main characteristics of the government officials’legal status. It held that government officials hold public office; their legal status is governed by law and not by contract. Their appointment and dismissal are based upon administrative decisions. Therefore the legal frameworks should be clear when decisions are made on the dismissal of government officials.

The Court took into account Article 30 of the Charter of Fundamental Rights of the European Union, under which «every worker has the right to protection against unjustified dismissal, in accordance with the Community Law and national laws and practices». In this regard, the Labour Code ensures protection in the event of unjustified dismissal.

The Court did not question that the need to increase the efficiency, performance and standard of public administration may justify making it easier to dismiss government officials. However, the legislator should develop rules that create a balance between the government’s objectives and the protection of government officials’constitutional rights. The Court found that the possibility of firing a government official without giving any reason whatsoever is a disproportionate restriction on the constitutional right ensured by Article 70.6 of the Constitution to hold public office. Furthermore, the lack of normative rules over government officials’dismissal makes it impossible for ordinary court judges to decide on the legality of a dismissal.

The Constitutional Court accordingly repealed the legislation as of 31 May 2011. If the legislation had been repealed with immediate effect, it would have been impossible for governmental officials to resign until new provisions were enacted by Parliament on resignation and dismissal.

III. Chief Justice Paczolay, Justice Bihari and Justice Stumpf attached a concurring opinion to the judgment.

Supplementary information:

Under the new Act adopted by Parliament on 23 May 2011, government officials cannot now be dismissed without explanation; loss of trust and unworthiness can, however, be accepted as reasons for dismissal. Employers must give an explanation, under the new provisions, and prove that the reasons for dismissal are realistic and lawful. The law outlines possible reasons for dismissal, such as the employee being over the retirement age, the position becoming redundant due to reorganisation, and where the activity that the job involves is discontinued. Dismissal will be mandatory if the person becomes unworthy of holding the position, if they do not carry out their duties properly and if their employer loses trust in them.

Languages:

Hungarian.