HUN-2011-2-003
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:
 
 
General Principles - Certainty of the law.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Fundamental Rights - Economic, social and cultural rights - Right of access to the public service.
 
Keywords of the alphabetical index:
 
Government officials, dismissal, reason / Protection, dismissal, unjustified.
 
Headnotes:
 
A law that allowed employers in the public administration to dismiss government officials without providing a reason for the dismissal was unconstitutional.
 
Summary:
 
I. In summer 2010 the governing two-thirds majority of Parliament adopted the Act on Government Officials which made it possible to dismiss government officials without the employer providing a reason for the dismissal. The then president returned 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 non-governmental organisations (NGOs) challenged it before the Constitutional Court.
 
II. First, the Constitutional Court analysed the main characteristics of the government officials’legal status. It held that government officials hold public offices; their legal status is governed by the law and not by private contracts. Their appointment and dismissal are based upon administrative decisions. Therefore the legal framework should be clear as regards decisions on the appointment and dismissal of a government official.
 
The Court took into account Article 30 of the Charter of Fundamental Rights of the EU which states: «Every worker has the right to protection against unjustified dismissal, in accordance with Union Law and national laws and practices.» In accordance with that Article, 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 measures to make the dismissal of government officials less difficult. However, the Court held that the legislature should develop rules that create a balance between the government’s objectives and the protection of government officials’constitutional rights. Accordingly, the Court found that the possibility of firing a government official without giving a reason whatsoever limits disproportionately the constitutional right ensured by Article 70.6 of the Constitution to hold a public office. In addition, the lack of normative rules concerning the Government official’s dismissal made it impossible for ordinary court judges to decide on the legality of a dismissal.
 
Therefore the Constitutional Court annulled the legislation with effect from 31 May 2011. The reason for the pro futuro annulment was that, by annulling the challenged provision ex nunc, it would have been impossible for the governmental officials to resign pending the enactment by Parliament of new provisions on resignation and dismissal.
 
Supplementary information:
 
Under the new Act, adopted by parliament on 23 May 2011, civil servants cannot be fired in the future without an explanation, but loss of trust and unworthiness can be accepted as reasons for dismissal. According to the new provisions, the employer must give an explanation and must prove that the reasons for dismissal are realistic and lawful. The law outlines the possible reasons for dismissal. These include: staff cuts if the position becomes redundant as a result of reorganisation; where the employee reaches retirement age; and where the activity that the job involves is discontinued. The Act provides that dismissal is mandatory if the person becomes unworthy of holding the position, if they do not properly fulfil tasks and if the employer loses trust in the employee.
 
Chief Justice Paczolay, Justice Bihari and Justice Stumpf attached concurring opinions to the judgment.
 
Languages:
 
Hungarian.