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
SUMMARY

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... (see full summary)

 
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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 specialisationproject 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), 4344 and 4748.
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): 14451.; Peter H. Sand, The Precautionary Principle: A European Perspective,
Human and Ecological Risk Assessment 6, no. 3 (2000): 44552.
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’tapproach); the opposite approach of
the principle is the so-called weak version of the principle; Cooney, Biodiversity and the Precautionary, x, 68.
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

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