The Precautionary Principle's strong Concept in the Case law of the Constitutional Court of Hungary

• Author: János Ede Szilágyi
• Position: Associate professor, PhD, dr. habil., University of Miskolc, Faculty of Law, head of department at the Department of Agricultural and Labour Law, ORCID: 0000-0002-7938-6860 (e-mail: civdrede@uni-miskolc.hu).
• Pages: 88-112

LESIJ NO. XXVI, VOL. 2/2019

THE PRECAUTIONARY PRINCIPLE’S STRONG CO NCEPT IN THE CASE

LAW OF THE CONSTITUTIONAL COURT OF HUNGARY

∗

János Ede SZILÁGYI

∗∗

Abstract

The present article focuses on the application and interpretation of the precautionary principle

by the Constitutional Court of Hungary, especially concentrating on Decision 13/2018. (IX.4.) of the

Constitutional Court of Hungary, in which the Constitutional Court of Hungary developed a

considerably strong concept of the precautionary principle. In this article, the so-called strong concept

of the precautionary principle in the case law of the Constitutional Court of Hungary means that the

proper implementation of the precautionary principle is a strict condition for the Hungarian

lawmakers. Namely, if the Hungarian lawmakers (e.g. parliament, government, ministers) do not take

the precautionary principle into account in an appropriate way during the adoption of a legal

provision, this situation shall cause a lack of conformity with the Hungarian constitution (i.e. the so-

called Fundamental Law) and the Constitutional Court of Hungary shall annul the affected legal

provision. In this article, the case law of the Constitutional Court of Hungary is assessed in the context

of the genesis and development of the precautionary principle at international, European and

Hungarian levels.

Keywords: precautionary principle, non-derogation principle, Hungarian constitutional law,

environmental law, Constitutional Court of Hungary (CCH).

1. Introduction

“Although there are a number of

different interpretations of the precautionary

principle, it generally describes an approach

to the protection of the environment or

human health that is based around taking

precautions even if there is no clear evidence

of harm or risk of harm from an activity or

substance. […] In other words, the principle

provides a framework for any discussion

about how to trade off the risk of

∗ The described article was carried out as part of the EFOP-3.6.1-16-2016-00011 “Younger and Renewing

University – Innovative Knowledge City – institutional development of the University of Miskolc aiming at

intelligent specialisation” project implemented in the framework of the Széchenyi 2020 program. The realization of

this project is supported by the European Union, co-financed by the European Social Fund.

∗∗ Associate professor, PhD, dr. habil., University of Miskolc, Faculty of Law, head of department at the

Department of Agricultural and Labour Law, ORCID: 0000-0002-7938-6860 (e-mail: civdrede@uni-miskolc.hu).

1 Stuart Bell, Donald McGillivray, and Ole W. Pedersen, Environmental Law (New York: Oxford University

Press, 2013), 68.

environmental harm as against other

considerations, but it does not necessarily

provide any right answer.”1

In environmental law, the so-called

precautionary principle and the

prevention pri nciple are not the sa me;

namely, the precautionary principle is

different from the prevention principle,

because the precautionary principle delivers

the level of sureness and confidence of the

expected consequences of a human activity

from certainty to scientific uncertainty or

János Ede SZILÁGYI 89

LESIJ NO. XXVI, VOL. 2/2019

probability.2 In law, the principles of

environmental protection have different

effects. Some of them merely orientate and

help the interpretation of legal norms; others

include binding rules. Additionally, their

effects and roles also vary from country to

country and from international level to

national level. As for the precautionary

principle, the situation is the same: “the

concept of precaution appears to mean

different things in different contexts”.3

Nowadays, there are numerous types of the

precautionary principle at both international

and national levels. However, in the present

article concentrating especially on the

Hungarian national law, the author deals

with a quite unusual and extraordinary type

of precautionary principle, which

determines rigorous requirements for the

Hungarian lawmaker s.4

The present article particularly focuses

on the Constitutional Court of Hungary

(hereinafter referred to as CCH) Decision

13/2018. (IX.4.) (hereinafter referred to as

CCH Decision 13/2018). The precautionary-

principle-aspects of CCH Decision 13/2018

have numerous antecedents in Hungarian

law and in the case law of the CCH,

however, before CCH Decision 13/2018, the

2 Bándi Gyula, “Gondolatok az elvigyázatosság elvérl,” Jogtudományi Közlöny 68, no. 10 (2 013): 479. Fodor

László, Környezetjog (Debrecen: Debreceni Egyetemi Kia dó, 2014), 86. See furthermore Farkas Csamangó Erika,

Környezetjogi szabályozások (Szeged: SZTE ÁJK ÜJI, 2017), 43–44 and 47–48.

3 Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment (New York:

Oxford University Press, 2009), 155. C.f. James Cameron and Juli Abouchar, The Precautionary Principle: A

Fundamental Principle of Law and Policy for the Protection of the Global Environment, Boston College

International and Comparative Law Review 14, no. 1 (2000) : 2.; Rosie Cooney, Biodiversity and the Precautionary

Principle: Risk and Uncertainty in Conservation and Sustainable Use (Gland – Cambridge: IUCN, 2005), ix.;

Elizabeth Fisher, Precaution, Precaution Everywhere: Developing a ‘Common Understanding’ of the

Precautionary Principle in the Europe an Community, Journal of European and Comparative Law 9, no. 1 (2002):

7–8, 13.; Nicolas de Sad eleer, “The Enforcement of the Precautionary Principle by German, French and Belgian

Courts,” Reciel 9, no. 2 (2000): 144–51.; Peter H. Sand, The Precautionary Principle: A European Perspective,

Human and Ecological Risk Assessment 6, no. 3 (2000): 445–52.

4 On the constitutional la w aspects of the precautionary principle in th e US law, see in detail Adrian Vermeule,

“Precautionary Principles i n Constitutional Law,” Journal of Legal Analysis 4, no. 1 (2012): 181 –222.

5 This approach of the precautionary principle might also be called as a more extreme, highly prohibitive,

restrictive or protectionist version of precaution (the “when in doubt, don’t” approach); the opposite approach of

the principle is the so-called weak version of the principle; Cooney, Biodiversity and the Precautionary, x, 6–8.

6 Ludwig Kräme r, EU Environmental Law (London: Sweet & Maxwell, 2012), 22.

CCH has not previously interpreted the

precautionary principle in detail, and the

CCH has never based its decision at this rate

on the precautionary principle. Additionally,

CCH Decision 13/2018 determined a quite

strong concept and version 5 of the

precautionary principle.

As for the content of the present

article, firstly, the genesis and development

of the precautionary principle is analysed;

secondly, the Hungarian aspects, especially

the CCH case law is assessed. As far as the

international and European levels are

concerned, the article does not endeavour to

present and interpret the precautionary

principle in detail, but to provide a minimum

comparative nexus for the assessment of the

Hungarian case.

2. The genesis of the precautionary

principle in international law and in EU

law

In connection with the origin of the

principle, Ludwig Krämer notices that the

“[o]rigin and content of the precautionary

principle are unclear.”6 Besides, some

authors emphasize the difference between

precautionary principle, precautionary