HUN-2015-2-003

a) Hungary / b) Constitutional Court / c)  / d) 05-06-2015 / e) 16/2015 / f) On the preliminary review of the Act on Managing State Land / g) Magyar Közlöny (Official Gazette), 2015/78 / h) .

Keywords of the Systematic Thesaurus:

03.10

General Principles - Certainty of the law.

04.05.06.03

Institutions - Legislative bodies - Law-making procedure - Majority required.

05.05.01

Fundamental Rights - Collective rights - Right to the environment.

Keywords of the alphabetical index:

Management right, state-owned land / Environment, protected zone / Environment, protection.

Headnotes:

The Act on Managing State Land, which would have transferred management rights for state-owned land to the National Land Management Fund, is unconstitutional The transfer of competences would have affected regulations reserved to cardinal Acts, meaning that a two-third majority in parliament would have been necessary to approve these parts of the Act. The transfer of property management to the National Land Management Fund would reduce the level of environmental protection, as the Fund prioritises mainly economic aspects of managing the land as opposed to ensuring they remain protected nature reserves.

Summary:

I. Parliament adopted the recent amendment to the Act on Managing State Land in its session on 28 April 2015. President János Áder refused to promulgate the bill; he turned to the Constitutional Court to initiate the preliminary review of conformity with the Fundamental Law. The amended land management bill on transferring asset management rights of state-owned land, including national parks, to the National Land Management Fund was passed at the end of April, in a second vote, after it failed to gather two-thirds majority support two weeks earlier.

The President found some of the provisions of the Act adopted by Parliament to be contrary to Articles B.1, 38.1, P and XXI of the Fundamental Law. The President asked three questions in his request to the Constitutional Court: first, whether any paragraph requiring two-thirds majority support was adopted with a simple majority. Second, whether guarantees for nature protection suffered any damage under the amended Act and third, whether existing contracts are vulnerable to modification under the new Act. The Constitutional Court must respond to the President s questions within 30 days.

II. The Constitutional Court examined the challenged provisions of a recent amendment to the Act on Managing State Land for the conformity with the Fundamental Law before the promulgation of the Act. According to the decision of the Constitutional Court, the majority of the challenged provisions were declared unconstitutional, thus the adopted bill could not be promulgated. Parliament had to hold a new debate on the Act in order to eliminate the violation of the Fundamental Law.

The Constitutional Court ruled that the recent amendment to the Act on Managing State Land concerning national parks was unconstitutional. At the same time, the Court held that the part of the Act enabling the termination of lease contracts and lease rights for certain land belonging to the National Land Management Fund, was not unconstitutional.

Parliament approved, with a simple majority at the end of April, the Act under which the land rights of national parks were put into the ownership of the National Land Management Fund and leasehold rights were terminated. The Court said that changing the approval conditions of the Act from a two-thirds majority to a simple one had been unconstitutional. The Constitutional Court declared that the challenged bill would have transferred management right for state-owned land to the National Land Management Fund, which   according to the Fundamental Law   affected regulations reserved to cardinal Acts. Therefore, a two-third majority would have been necessary to approve these parts of the Act, instead of simple majority of the Members of Parliament.

The Constitutional Court also found the transfer of property management to the National Land Management Fund to be unconstitutional, as the Fund prioritises mainly economic aspects of managing the land as opposed to ensuring they remain protected nature reserves. The Constitutional Court declared that, although the organisational structure can be changed, the already achieved legal level of the environmental protection shall not be reduced. As the challenged bill would have resulted in this, it violated the Fundamental Law, so it was declared unconstitutional.

However, the Constitutional Court declared, that   contrary to the petition of the President of the Republic   those parts of the challenged bill which increase the deadline of the expropriation and change the person who requires the expropriation were not subject to the two-thirds majority requirement.

In addition, the Constitutional Court did not find unconstitutional that the bill enabled the termination of lease contracts and the ceasing of lease rights for certain lands belonging to the National Land Management Fund.

III. Judges Egon Dienes-Oehm, Imre Juhász and István Stumpf attached concurring opinion, and judges László Kiss, Miklós Lévay, László Salamon and András Varga Zs. attached dissenting opinion to the decision.

Languages:

Hungarian.