a)  Hungary / b)  Constitutional Court / c) / d)  29-12-2012 / e)  45/2012 / f)  Annulment of certain provisions of the Transitional Provisions to the Fundamental Law / g)  Magyar Közlöny (Official Gazette), 2012/184 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - Quasi-constitutional legislation.
General Principles - Rule of law.
Institutions - Legislative bodies - Law-making procedure.
Keywords of the alphabetical index:
Constitution, amendment / Constitution, amendment, validity / Constitution, change / Constitution, transition, provisional.
Transitional Provisions adopted under the Fundamental Law are not valid where they do not comply with the requirements for the adoption of such provisions under the Fundamental Law. Parliament, acting as a constitution-amending power, must comply with the constitutional requirements of law-making. The Fundamental Law may only be amended directly, through the appropriate constitutional procedure. Indirect amendment of the Fundamental Law, through the addition of general normative rules contained within transitional provisions, which purport to become an integral part of the constitutional text, is not permitted.
I. In March 2012 the Commissioner of Fundamental Rights submitted a petition in which he requested the Court to examine whether the Transitional Provisions to the Fundamental Law (hereinafter, the "TPFL") comply with the requirements of the rule of law laid down in . According to the Commissioner the TPFL, adopted by Parliament in December 2011 in a separate document, gravely violates the principle of the rule of law, and may cause problems of interpretation and endanger the unity and operation of the legal system.
First, the Commissioner found it problematic from the point of view of the rule of law that the status of the TPFL as a legal source and its place in the legal system is not clearly defined. The Fundamental Law provides for the adoption of transitional provisions, but the TPFL exceeds this authorisation and defines itself as part of the Fundamental Law, attempting thereby to prevent examination of the content of its provisions as to their compliance with the rules on guarantees laid down in the Fundamental Law. The Commissioner emphasised that it would entail grave dangers if Acts adopted on the basis of the TPFL were contrary to the Fundamental Law itself and its fundamental rights provisions.
Second, according to the Commissioner there are numerous articles of the TPFL that do not comply with the requirement of transitionality appearing also in the title of the legal norm: the main criterion of the transitional provisions to a rule of law is that their adoption is made necessary by the transition from the old regulation into the new one, therefore they always include concrete and temporary provisions, i.e. transitional provisions related to the transition itself. Beyond the formal objections, the Commissioner indicated in his petition that other constitutional concerns may also be raised regarding the content of the contested provisions.
Thirdly, subsequent to the Commissioner's petition, Parliament amended the Fundamental Law. According to , the Closing Provisions of the Fundamental Law shall be supplemented with the following point 5: "5. The Transitional Provisions to the Fundamental Law (31 December 2011) adopted according to point 3 above form a part of the Fundamental Law." The Constitutional Court enquired the Commissioner if he upheld his petition in the new constitutional background.
The Commissioner upheld the petition challenging the TPFL, since the First Amendment to the Fundamental Law did not answer all the questions according to which the Commissioner contested the TPFL. In the Commissioner's opinion, the TPFL could not overrule the Fundamental Law; neither could they make exceptions from the application of its regulations.
II. The starting point of the Court's constitutional review was that the Fundamental Law is a unified system. Under , the basis of the legal order is the Fundamental Law. The Fundamental Law, like any other constitution, requires absolute priority and implementation in the whole legal order. It is the standard against which all pieces of legislation shall be evaluated. Every amendment of the Fundamental Law shall be an integral part of the constitutional text, ensuring the coherence of the Fundamental Law from the point of view of its content and structure. That means that a constitutional amendment must appear in the official version of the text of the Fundamental Law. If the TPFL could set down exceptions to the Fundamental Law, the standard itself would be infringed. Such a situation would call the constitutional status of the Fundamental Law itself into question.
Point 3 of the Closing Provisions of the Fundamental Law requires Parliament to adopt transitional provisions for the purpose of securing the transition from the former Constitution to the new one. However, alongside the real transitory regulations, the TPFL contained permanent normative provisions. The Court did not review the constitutionality of these provisions one by one. Instead, the Court examined whether Parliament, acting as a constitution-amending power, had complied with the constitutional requirements of law-making. The Court declared that many of the provisions of the TPFL were certainly not temporary measures, so the Court annulled them.
Among these nullified provisions were: the preamble on the criminal responsibility of communist leaders and the reduction of their pensions; Article 11.3 and 11.4, which allowed the president of the National Judicial Office and the Prosecutor General to transfer cases to courts of their choosing; Articles 12 and 13, which dealt with the early retirement of judges and prosecutors; and Article 18, which stated that the president of the Budgetary Council was to be appointed by the President of Hungary.
In addition, the Court annulled Article 21 of the TPFL, which allowed Parliament to decide on the status of churches; and Article 22, which defined the constitutional complaint proceeding of the Constitutional Court. The Court also nullified Article 23.1, 23.4 and 23.5 concerning electoral registration, Article 27 on the extension of the restriction of the competence of the Constitutional Court, Article 28.3 which allowed the government to pass regulations for local governments if they neglect to regulate a matter prescribed by law, and Article 29, under which new taxes could be assessed in cases where the Court of Justice of the European Union imposes a fine on Hungary because of government actions that contravenes European Union law.
Last but not least, the Court annulled Article 31.2 of the TPFL, according to which the transitional provisions were accepted on the basis of the old and new constitutions; and Article 32, which declared 25 April as a memorial day of the Fundamental Law.
III. András Holló and István Stumpf attached a concurring opinion, István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Péter Szalay and Mária Szívós attached dissenting opinions to the decision.
Constitutional Court:
- no. 31/2012, 29.06.2012, Bulletin 2012/2 [HUN-2012-2-002].