The Protection of the Interests of Future Generations in the 10-Year-Old Hungarian Constitution, With Special Reference to the Right to a Healthy Environment and Other Environmental Issues

Abstract

The present study is inspired by the tenth anniversary of the new Hungarian Constitution, known under the name of Fundamental Law, which was adopted in 2011 and entered into force in 2012. In this study we analyse the ten-year old Fundamental Law and its constitutional practice with regard to the important challenges and tasks of the 21st century, namely how the protection of the interests of future generations and the environment are reflected in it. Particularly important elements of the study are (a) the institutional guarantees of the relevant provisions, such as the provisions relating to the Constitutional Court and the Advocate of Future Generations, (b) the concept of GMO-free agriculture in the Fundamental Law, (c) the theses of the Constitutional Court practice on the prohibition of retrogression and the precautionary principle, (d) new interpretative frameworks and possibilities arising from other values of the Fundamental Law, such as the provisions on Christian culture, (e) the open questions of interpretation of the Fundamental Law on waste and the environmental liability regime, (f) the priority protection of natural resources, which are the common heritage of the nation, and last but not least (g) the particularly forward-looking integration of the interests of future generations in the rules on public finances and national assets.

The Role and Activity of the Deputy Commissioner for Fundamental Rights Ombudsman for Future Generations in Shaping Environmental Protection in Hungary

“…Regarding the green ombudsman, the law described specific criteria, namely, to be an outstanding scholar or have at least ten years of practice in environmental and nature protection law, and significant experience in conducting and supervising procedures relating to environment and nature protection or in the enforcement of the right to a healthy environment. 34 Although the Parliamentary Commissioner was labelled as the Commissioner for Future Generations, the constitutional and the legal framework in force at the time implies that the Ombudsman was responsible for the protection of the environment. 35 The Constitution -Act XXXI of 1989 -declared everyone9s right to a healthy environment, and the protection of the built and natural environment as a state task for the realization of the right to the highest possible physical and mental health.…”

“…33 The other Parliamentary Commissioners were responsible for civil rights, data protection, and the rights of national minorities. 34 Act CXLV of 2007, art. 10 (27/A (2)).…”

How the KOB SIA case altered the Member States’ margin of appreciation: with particular attention to the judgment’s possibly consistent characteristics and the relevant provisions of Directive 123/2006

“…27 Yves Bot adds to the general opinion that this issue is debated in the legal literature. 28 The general opinion 29 mentions the judgment in the Rina Services case, where the CJEU decided that Article 3 paragraph 3 of Directive 2006/123 cannot be interpreted in a way that allows the member states to justify the prohibited requirements of Article 14 by referring to the primary law because this would be a barrier to the directive's harmonization. The general opinion concluded that the Court considered Advocate General Pedro Cruz Villalón's general opinion of the Rina Services case.…”

The use of the precautionary principle and the non-refoulement principle in public law

“…The obligation of states includes, as a minimum, the obligation to ensure freedom from starvation and minimum access to essential foods of adequate nutritional value and safety. 36 According to the legal definition, the state resulting from the fulfillment of food safety is a level of safety that is based on the knowledge and recognition of health risks according to science. 37 Where there is a risk of harm to health, all necessary measures must be taken to eliminate the risk, even if insufficient scientific evidence is available to demonstrate this.…”