Viktor Zoltán Kazai - Central European University, Budapest

Name of the act/s*

Judgment in Case 66/18 Commission v Hungary

Subject area

academic freedom, freedom of establishment, GATS, national treatment

Brief description of the contents of the act

Summary of the Court of Justice of the European Union:

“In its judgment in Commission v Hungary (Higher education) (C-66/18), delivered on 6 October2020, the Grand Chamber of the Court of Justice upheld the action for failure to fulfil obligations brought against Hungary by the European Commission. The Court held, first, that, by making the exercise, in Hungary, of teaching activities leading to a qualification by higher education institutions situated outside the European Economic Area (EEA) subject to the existence of an international treaty between Hungary and the third country in which the institution concerned has its seat, Hungary has failed to comply with the commitments in relation to national treatment given under the General Agreement on Trade in Services (GATS), concluded within the framework of the World Trade Organisation (WTO). That requirement is also contrary to the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) relating to academic freedom, the freedom to found higher education institutions and the freedom to conduct a business.

Second, the Court held that, by making the exercise, in Hungary, of the activities of foreign higher education institutions, including institutions having their seat in another Member State of the EEA, subject to the condition that they offer higher education in the country in which they have their seat, Hungary has failed to comply with its national treatment commitments under the GATS and with its obligations in respect of the freedom of establishment,3 the free movement of services and the abovementioned provisions of the Charter.”

Comment

See the previous contribution on Opinion of AG Kokott of 5 March 2020 in the Case C-66/18, European Commission v Hungary.

Secondary sources/ doctrinal works (if any)

Renáta Uitz: Finally. The CJEU Defends Academic Freedom, Verfassungsblog, 8 October 2020, available at: https://verfassungsblog.de/finally-the-cjeu-defends-academic-freedom/

See also the previous contribution on Opinion of AG Kokott of 5 March 2020 in the Case C-66/18, European Commission v Hungary.

*Act citation /year and number

Judgment in Case 66/18, Commission v Hungary, EU:C:2020:792

Enacted by

Court of Justice of the European Union

Official link to the text of the act

http://curia.europa.eu/juris/document/document.jsf?text=&docid=232082&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=12489778

Name of the act/s*

2020. évi LVII. törvény a veszélyhelyzet megszüntetéséről / Act no. LVII of 2020 on the termination of the state of danger

282/2020. (VI. 17.) Korm. rendelet a 2020. március 11-én kihirdetett veszélyhelyzet megszüntetéséről / Government Decree no. 282/2020 (VI. 17.) on the termination of the state of danger declared on 1 March 2020

2020. évi LVIII. törvény a veszélyhelyzet megszűnésével összefüggő átmeneti szabályokról és a járványügyi készültségről / Act no. LVIII of 2020 on the transitional provisions related to the termination of the state of danger and the on the state of medical emergency

283/2020. (VI. 17.) Korm. rendelet a járványügyi készültség bevezetéséről / Government Decree no. 283/2020 (VI. 17) on the introduction of the medical state of emergency

478/2020. (XI. 3.) Korm. rendelet a veszélyhelyzet kihirdetéséről / Government Decree no 478/2020 (XI. 3.) on the introduction of the state of danger

T/13571. számú törvényjavaslat a koronavírus világjárvány második hulláma elleni védekezésről /Bill no. T/13571 on the defense against the second wave of the pandemic

Subject area

state of danger, special legal order, pandemic, COVID-19

Brief description of the contents of the act

Upon the request of the National Assembly, the Government termination the state of danger – a form of special legal order – which had been in force since 11 March (see the previous contribution on the Act no. XII of 2020 on the containment of coronavirus). The National Assembly also adopted another act to clarify the legal consequences of all the decrees adopted by the Government during the state of danger. In addition, the act introduced another form of quasi special legal order, namely the medical state of emergency, delegating a very broad legislative power to the Government to regulate a great variety of issues related to the pandemic. The Government immediately took this opportunity and introduced a state of medical state of emergency in June.

Despite the broad competences enjoyed by the Government ever since the introduction of the medial state of emergency, in the beginning of November the Government decided to have recourse of Article 53(1) of the Fundamental Law of Hungary and declare a state of danger again. During the state of danger, the government is authorized to temporarily suspend the enforcement of certain laws (including parliamentary acts), depart from statutory regulations and implement additional extraordinary measures by decree.

In order to extend the competences of the Government, the National Assembly adopted an act of authorization on 10 November. The authorization act will remain in force for 90 days. During this period the Government has the right to extend the force of its own decrees adopted on the basis of the special legal order provision of the constitution.

Comment

The Government is heavily criticized for making the text of emergency decrees publicly available only in the very last minute, very often just a couple of hours before their entry into force. This style of hasty of lawmaking seriously endangers legal security and legal certainty.

In addition, the Government used the declaration of the state of emergency as an opportunity to introduce very controversial legislative measures in parliament, including:

-        the Ninth Amendment to the Fundamental Law of Hungary,

-        the amendment to the electoral law, and

-        the amendment to the regulation on adoption.

Secondary sources/ doctrinal works (if any)

Gábor Halmai, Gábor Mészáros, Kim Lane Scheppele: From Emergency to Disaster. How Hungary’s Second Pandemic Emergency will Further Destroy the Rule of Law, Verfassungsblog, 30 May 2020, available at: https://verfassungsblog.de/from-emergency-to-disaster/

Csaba Győry, Nyasha Weinberg: Emergency powers in a hybrid regime: the case of Hungary, The Theory and Practice of Legislation, published online on 2 November 2020, https://www.tandfonline.com/doi/full/10.1080/20508840.2020.1838755

András Kádár: In its Nature—How Stealth Authoritarianism Keeps Stealing Along During the Pandemic, and How Can it be Stopped?, Journal of Human Rights Practice, published online on 10 October 2020, available at: https://academic.oup.com/jhrp/advance-article/doi/10.1093/jhuman/huaa034/5920410

Kriszta Kovács: Democracy in Lockdown, Social Research: An International Quarterly, Vol. 87, No. 2 (2020), available at: https://muse.jhu.edu/article/764866

See also the previous contribution on the Act no. XII of 2020 on the containment of coronavirus.

*Act citation /year and number

Act no. LVII of 2020 on the termination of the state of danger

Government Decree no. 282/2020 (VI. 17.) on the termination of the state of danger declared on 1 March 2020

Act no. LVIII of 2020 on the transitional provisions related to the termination of the state of danger and the on the state of medical emergency

Government Decree no. 283/2020 (VI. 17) on the introduction of the medical state of emergency

Government Decree no 478/2020 (XI. 3.) on the introduction of the state of danger

Bill no. T/13571 on the defense against the second wave of the pandemic

Enacted by

National Assembly, Government of Hungary

Official link to the text of the act

http://njt.hu/cgi_bin/njt_doc.cgi?docid=220119.384678, in English: http://njt.hu/translated/doc/J2020T0057P_20200618_FIN.pdf  

http://njt.hu/cgi_bin/njt_doc.cgi?docid=220123.384684, in English: http://njt.hu/translated/doc/J2020R0282K_20200618_FIN.pdf

http://njt.hu/cgi_bin/njt_doc.cgi?docid=220120.390527

http://njt.hu/cgi_bin/njt_doc.cgi?docid=220124.384686, in English: http://njt.hu/translated/doc/J2020R0283K_20200618_FIN.pdf

http://njt.hu/cgi_bin/njt_doc.cgi?docid=222556.391006, in English: http://njt.hu/translated/doc/J2020R0478K_20201104_FIN.pdf

https://www.parlament.hu/irom41/13571/13571.pdf

Name of the act/s*

2020. évi LXXII. törvény a Színház- és Filmművészetért Alapítványról, a Színház- és Filmművészetért Alapítvány és a Színház- és Filmművészeti Egyetem részére történő vagyonjuttatásról / Act no. LXXII. of 2020 on the Foundation for the University for Theater and Film Arts and on the endowment to the University for Theater and Film Arts and the Foundation for the University for Theater and Film Arts

Subject area

academic freedom

Brief description of the contents of the act

On 3 July 2020 the National Assembly adopted Act no. LXXII. of 2020 on the Foundation for the University for Theater and Film Arts which entered into force five days later. The act set up a foundation to which the most important rights of control over the operation of the university, of the management of its wealth and of the appointment of its faculty were delegated. The foundation operates under the supervision of the Minister of Innovation and Technology. The board of the foundation was authorized – among others – to adopt the budget of the university, to approve its internal regulation and to exercise influence on the selection of the rector (president).

Comment

In practice, this development is part of a broader process, i.e. the “privatization” of certain state universities. Most of the institutions put under the control of a “private” foundation, such as the University for Theater and Film Arts, continue to be financed by the state. In theory, this new system could even enhance the autonomy of universities. However, the circumstances of the adoption and the implementation of this reform raise serious concerns.

Upon the request of the Ministry, the senate of the university prepared a proposal for the new international regulations necessary for the implementation of the reform. The board of the foundation however completely ignored the senate’s proposal and issued the new internal regulations without the senate’s consent. The board authorized itself to appoint the most prominent members of the university’s leadership.

The reason why these decisions are particularly concerning is that the members of the board were appointed by the ministry on the basis of their political worldview. This reform is strongly associated with the culture war waged by the government against the cultural sphere allegedly dominated by the “leftist-liberal” elite ever since the fall of the socialist dictatorship. It is very often argued by the government and artists closely affiliated with the government that such and similar reforms are necessary to remedy the repression of Christian-conservative artists and values.

As a response to these decisions of the foundation’s board, the leadership of the university and several members of the faculty resigned, the remaining professors went on strike and the students blockaded the university. After more than two months of resistance, the students announced on 9 November 2020 the end of the blockade due to the restrictions introduced by the government because of the pandemic.

Secondary sources/ doctrinal works (if any)

Viktor Z. Kazai: Aux armes, comédiens!: The freedom of the arts and sciences under siege, Verfassungsblog, 7 September 2020, available at: https://verfassungsblog.de/aux-armes-comediens/

Luca Kristóf : Cultural policy in an illiberal state. The case study of Hungary after 2010. Intersections East European Journal of Society and Politics, 3 (3) (2017), http://real.mtak.hu/63433/

Iván Bajomi et al.: Hungary Turns its Back on Europe. Dismantling Culture, Education, Science and the Media in Hungary 2010-2019 (Budapest: Hungarian Network of Academics, 2020), available at: http://mek.oszk.hu/20200/20273/20273.pdf

*Act citation /year and number

Act no. LXXII. of 2020 on the Foundation for the University for Theater and Film Arts and on the endowment to the University for Theater and Film Arts and the Foundation for the University for Theater and Film Arts

Enacted by

National Assembly

Official link to the text of the act

http://njt.hu/cgi_bin/njt_doc.cgi?docid=220656.386066

Name of the act/s*

2020. évi XII. törvény a koronavírus elleni védekezésről / Act XII of 2020 on the containment of coronavirus

Subject area

state of danger, special legal order, extraordinary measures, delegation of legislative power

Brief description of the contents of the act

The act extended the application of emergency measures (adopted in the form of government decrees) put in place by the executive after the declaration of the state of danger (a form of special legal order) in the beginning of Mars.

The act authorized the government to regulate any legislative issue related to the outbreak of the pandemic and its consequences by decree without setting any date for expiry.

The act prepared the Constitutional Court for digital operation. Elections and referenda were suspended until the end of the state of danger. The statutory definition of the crime of spreading false information was amended and the violation of the rules of epidemiological confinement was criminalized.

Comment

On 11 Mars 2020, the Hungarian government declared a state of danger (government decree no. 40/2020. (III. 11.)). The government’s constitutional authorization to issue decrees without the approval of the parliament lasted only for two weeks, therefore the governing majority adopted the Act XII of 2020 on the containment of coronavirus (hereinafter: Enabling Act).

The Enabling Act gave practically unlimited authorization to the government to regulate any issue related to the pandemic (even if only indirectly). The parliament continued to operate, but very important legislative measures were regulated by the government instead of the legislature. The constitutionality of both the declaration of the state of danger and the Enabling Act was a matter of controversy because neither the Fundamental Law of Hungary nor the previous jurisprudence of the Hungarian Constitutional Court provided clear guidance. In sum, the government used to the authorization not only to contain the pandemic and mitigate its consequences, but also to put in place some very controversial legislative measures which would have required parliamentary approval.

The state of danger was terminated by the parliament and the delegation of legislative power was revoked on 18 of June 2020. However, the legislature adopted another parliamentary act on the very same day (Act LVIII of 2020 on the preparation for the pandemic and other transitional provisions related to the termination of the state of danger) making it much easier for the government to apply extraordinary legislative measures in case of a pandemic.

Secondary sources/ doctrinal works (if any)

1)     Declaration of the state of danger and the Enabling Act

Uitz, Renáta: Pandemic as Constitutional Moment: Hungarian Government Seeks Unlimited Powers, VerfBlog, 24 March 2020, https://verfassungsblog.de/pandemic-as-constitutional-moment/

Uitz, Renáta: Hungary’s Enabling Act: Prime Minister Orbán Makes the Most of the Pandemic, constitutionnet.org, 6 April 2020, http://constitutionnet.org/news/hungarys-enabling-act-prime-minister-orban-makes-most-pandemic

Kazai, Viktor Zoltán: La Nature Autoritaire du Régime d’Orbán Confirmée par sa Résponse a la Pandémie, JP blog, 6 May 2020, http://blog.juspoliticum.com/2020/05/06/la-nature-autoritaire-du-regime-dorban-confirmee-par-sa-reponse-a-la-pandemie-par-viktor-zoltan-kazai/

Bárd, Petra - Sergio Carrera: Showing true illiberal colours–Rule of law vs Orbán’s pandemic politics, CEPS Policy Insights No 2020-10/April 2020, http://aei.pitt.edu/102726/1/PI2020%2D10_PBSC_true%2Dilliberal%2Dcolours.pdf

 

Drinóczi, Tímea - Agnieszka Bień-Kacała : COVID-19 in Hungary and Poland: extraordinary situation and illiberal constitutionalism, The Theory and Practice of Legislation (2020), https://www.tandfonline.com/doi/full/10.1080/20508840.2020.1782109?src=recsys

Hungarian Helsinki Committee: Background note on Act XII of 2020 on the containment of the coronavirus, 31 March 2020, https://www.helsinki.hu/wp-content/uploads/HHC_background_note_Authorization_Act_31032020.pdf

2)     Restrictive measures put in place during the state of danger

Coronavirus pandemic in the EU –Fundamental Rights Implications (Hungary), European Union Agency for Fundamental Rights, 4 May 2020, https://fra.europa.eu/sites/default/files/fra_uploads/hu_report_on_coronavirus_pandemic-_may_2020.pdf

3)     Controversial legislative measures during the state of danger

Karsai, Dániel: The Curious and Alarming Story of the City of Göd: How the Hungarian Government misuses its power in their political fight against opposition-led municipalities, VerfBlog, 2020/5/15, https://verfassungsblog.de/the-curious-and-alarming-story-of-the-city-of-goed/

For the brief analysis in English of some controversial measures put in place by the Hungarian government during the state of danger see the Covid-19 news of the Hungarian Helsinki Committee: https://www.helsinki.hu/en/covid-19-news/

4)     Termination of the state of danger and related legislative provisions

Hungarian Helsinki Committee: Explanatory Note for the Bills Terminating the State of Danger and on Related Transitional Provisions, 12 June 2020, https://www.helsinki.hu/en/explanatory-note-for-the-bills-on-terminating-the-state-of-danger-and-on-related-transitional-provisions/

*Act citation /year and number

Act XII of 2020 on the containment of coronavirus

Enacted by

Hungarian National Assembly

Official link to the text of the act

The Hungarian version: http://njt.hu/cgi_bin/njt_doc.cgi?docid=218767.381191

The English translation:  http://njt.hu/translated/doc/J2020T0012P_20200401_FIN.pdf

Name of the act/s*

Judgment in Joined Cases C-924/19 PPU and C-925/19 PPU FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság

Subject area

refugee law, asylum

Brief description of the contents of the act

The Court of Justice of the European Union (CJEU) delivered its judgment in the joint cases concerning two asylum-seeking families held in the transit zone in Röszke, at the Hungarian-Serbian border. The cases originate in preliminary ruling requests lodged by Hungarian judges in December 2019. The Hungarian judges asked the CJEU to rule on whether placement in the country’s two land-border transit zones constitutes detention, among other questions.

The Court first held that detaining the persons concerned in that transit zone must be regarded as a detention measure. According to the Court, the conditions prevailing in the Röszke transit zone amount to a deprivation of liberty, inter alia because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever. In particular, they may not leave that zone for Serbia since such an attempt (i) would be considered unlawful by the Serbian authorities and would therefore expose them to penalties and (ii) might result in their losing any chance of obtaining refugee status in Hungary.

The Court held that neither an applicant for international protection nor a third-country national who is the subject of a return decision may be detained solely on the ground that he or she cannot meet his or her own needs. The Court added that EU law precludes an applicant for international protection or a third-country national who is the subject of a return decision from being detained without the prior adoption of a reasoned decision ordering that detention and without the need for and proportionality of such a measure having been examined.

Lastly, the Court held that the lawfulness of a detention measure, such as the detention of a person in a transit zone, must be amenable to judicial review. Moreover, if, following its review, the national court considers that the detention measure at issue is contrary to EU law, that court must be able to substitute its decision for that of the administrative authority which adopted the measure and order the immediate release of the persons concerned, or possibly an alternative measure to detention.

Secondary sources/ doctrinal works (if any)

About the transit zone as an integral part of the Hungarian government’s refugee and asylum policy:

Tóth, Judit: Hungary at the border of populism and asylum, in Sergio Carrera – Marco Stefan (eds.) Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union. Complaint Mechanisms and Access to Justice (Routledge, 2020)

Nagy, Boldizsár: From Reluctance to Total Denial. Asylum Policy in Hungary 2015–2018, in Vladislava Stoyanova – Eleni Karageorgiou (eds.) The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis (Brill, 2019)

Bernát, A. et al.: Borders and the Mobility of Migrants in Hungary, Ceaseval Research on the Common European Asylum System, 29 (2019) http://ceaseval.eu/publications/29_WP4_Hungary.pdf

Witold Klaus et al.: Refugees and Asylum Seekers in Central European Countries. Reality, Politics and the Creation of Fear in Societies, in Helmut Kury – Slawomir Redo (eds.) Refugees and Migrants in Law and Policy Challenges and Opportunities for Global Civic Education (Springer, 2018)

*Act citation /year and number

Judgment in Joined Cases C-924/19 PPU and C-925/19 PPU FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság

Enacted by

Court of Justice of the European Union

Official link to the text of the act

http://curia.europa.eu/juris/liste.jsf?oqp=&for=&mat=or&lgrec=hu&jge=&td=%3BALL&jur=C%2CT%2CF&num=C-924%252F19&page=1&dates=&pcs=Oor&lg=&pro=&nat=or&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&language=en&avg=&cid=8834245

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