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Last update: 20-08-2007
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Legal order - Hungary

 

TABLE OF CONTENTS

I. Hungarian sources of law I.
1. Constitution 1.
2. Acts of Parliament 2.
3. Decrees 3.
4. International agreements 4.
II. Other sources of law taken in a broader sense and not qualifying as regulations II.
1. Other legal instruments of governance 1.
2. Decisions of the Constitutional Court 2.
3. The case law of courts 3.
III. Entry into force of rules in supranational instruments III.
IV. The different organs authorised to adopt legal regulations IV.
V. The process of adopting legal regulations V.
VI. Entry into force of national rules VI.
VII. Means of resolving contradictions among sources of law VII.

 

I. Hungarian sources of law

1. Constitution

Act XX of 1949 on the Constitution is at the apex of the hierarchy of legislation in Hungary. Every other law must be compatible with it. The Constitution is enacted by the National Assembly and an amendment to it requires a two-third majority of the votes of all the Members of Parliament [Article 24(3) of the Constitution].

The Hungarian Constitution consists of fifteen chapters. Chapter I, which contains general provisions, lays down the form of government, the transfer of certain powers to the European Union and several fundamental principles, such as the rule of law, the prohibition on securing power by force, the free founding and operation of parties, the repudiation of wars, cooperation in establishing European unity, the recognition of fundamental rights and the fact that the law contains rules on fundamental rights and obligations but must not impose limitations on the essential contents of fundamental rights.

Chapters II to XI contain the most fundamental rules relating to public dignitaries and the most important institutions of the country, setting out the legal status and tasks of the National Assembly, the President of the Republic, the Constitutional Court, the Parliamentary Commissioner for Human Rights, the Parliamentary Commissioner for National and Ethnic Minority Rights, the State Audit Office, the Hungarian National Bank, the Government, the armed forces and the police, the local governments, the judiciary and the Prosecutor’s Office.

Chapter XII contains the declaration of fundamental rights and obligations, Chapter XIII lays down the principles governing elections, Chapter XIV concerns Hungary's capital city and emblems, and Chapter XV contains closing provisions.

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2. Acts of Parliament

In Hungary, Acts can be enacted by the National Assembly. The Constitution sets out the fundamental rights and obligations to be regulated by Acts. Act XI of 1987 on Legislation (Legislation Act) brings further domains within the exclusive scope of legislation. The National Assembly adopts some Acts by a simple majority of votes, i.e. more than half of the votes of the Members of Parliament present, and others by a two-thirds majority (qualified majority). In addition to the Act adopting the Constitution, the Act ratifying and promulgating the international treaty on EU accession and the Act on national emblems also require a two-thirds majority of the votes of all the Members of Parliament. The acts that require a two-thirds majority of votes are specified by the Constitution.

Prior to the adoption of Act XXXI of 1989 on the amendment of the Constitution, the Presidential Council of Hungary was authorised to issue decree-laws. From the point of view of legislative hierarchy, the decree-laws still in force qualify as regulations at the same level as acts.

3. Decrees

The Legislation Act recognises Government Decrees, Ministerial Decrees and Local Government Decrees.

The Government's authority to enact decrees may be primary or based on legislative authorisations. The primary powers are established by Article 35(2) of the Constitution, which declares that the Government shall issue decrees within its sphere of authority. This does not restrict the National Assembly, which may bring any regulatory field under its authority.

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Under the Legislation Act the Government may, also under specific legislative authorisation, enact decrees to implement acts. Under Article 15(1) of the Legislation Act, an authorisation to enact implementing regulations must specify the holder, subject and scope of the authorisation. The holder may not give further legislative authorisation to another party.

Ministerial Decrees are a special type of decree. They rank below the level of Government Decrees in the hierarchy of legislation. Under the Legislation Act, ministers may issue decrees within their sphere of responsibility and on the basis of authorisations under Acts of Parliament or Government Decrees. Two conditions must therefore be met for the issue of Ministerial Decrees.

Under a separate act, the President of the Hungarian National Bank may, in Central Bank Decrees, issue provisions that are binding on financial institutions, legal persons not qualifying as financial institutions but performing additional financial services, investment service providers and clearing houses.

Local Government Decrees constitute the third type of decree. Article 44/A(2) of the Constitution states that local representative bodies may issue decrees within their sphere of authority but that these must not conflict with higher legal regulations. Under Article 16(1) of Act LXV of 1990 on local governments, a local government representative body may, within its sphere of authority, issue Local Government Decrees regulating local public affairs not governed by regulations at a higher level and enforce them on the basis of their legal authorisation.

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4. International agreements

Hungary/the Government of Hungary may conclude international agreements with other States/the governments of other States. In Hungary the relationship between international agreements and domestic law is based on a dualist system, i.e. international agreements become part of domestic law via their promulgation by legal regulations.

II. Other sources of law taken in a broader sense and not qualifying as regulations

1. Other legal instruments of governance

The Hungarian legal system includes other legal instruments of governance which, although they are rules, do not qualify as legal regulations since they are internal rules not binding on all but (with the exception of legal guidelines not having binding legal force) only on bodies under the authority of the issuer. Under the Legislation Act, these instruments of governance include decisions, central bank orders, statistical communications and legal guidelines.

Decisions can be passed by the National Assembly, the Government, government committees, local government and local government bodies,  regulating their own operation and the tasks of bodies under their authority and adopting plans relating to their spheres of responsibility.

Within their remit as provided for in legal regulations, ministers and heads of competent national bodies may issue instructions to regulate the activities of bodies under their direct authority.

Statistical communications are issued by the President of the Central Statistical Office and contain binding provisions consisting exclusively of statistical terms, methods, classifications, lists and figures.

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Legal guidelines include Directives issued by the National Assembly and the Government which set forth general objectives and programmes and take positions on important state and public affairs. The National Assembly and the Government may interpret legal regulations in positions of principle. Ministers and competent heads of national bodies may issue directives and notices. Directives give recommendations on the most important ways and means of implementing legal regulations. Notices communicate facts or data important for the operation of bodies in charge of implementing legal regulations.

2. Decisions of the Constitutional Court

Decisions of the Constitutional Court play an important role in the system of legislation. The Constitutional Court checks the constitutionality of regulations and, by means of decisions, annuls regulations (provisions) that conflict with the Constitution. The Constitutional Court gives detailed reasons for its decisions and judges similar cases in accordance with already applied principles. A Constitutional Court decision is not open to appeal and is binding on all. The Constitutional Court's most important tasks are to protect the Constitution and maintain constitutional democracy and the stability of the rule of law. The Constitutional Court is therefore endowed with a high degree of independence and power.

3. The case law of courts

Fulfilling its responsibility of ensuring the uniform application of law and providing judicial guidance to lower courts, the Supreme Court passes uniformity decisions and issues decisions of principle. A uniformity procedure can be initiated if the development and uniformity of judicial practice requires the adoption of a uniformity decision in a matter of principle, and if a chamber of the Supreme Court intends to deviate from the decision taken by another chamber of the Supreme Court. A decision relating to uniformity in law is binding on the courts. Decisions of principle selected from the practice of the Supreme Court’s judicial chambers also serve uniformity of sentencing; in addition to decisions for uniformity in law, decisions of principle are also published in the Supreme Court’s Official Repertory (Legfelsőbb Bíróság Hivatalos Gyűjteménye).

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III. Entry into force of rules in supranational instruments

Act L of 2005 (International Law Act) governs the procedure relating to international agreements and the promulgation and entry into force of such agreements. According to Article 9 of the International Law Act, if under Article 7(3) the National Assembly has authorised recognition of the validity of an international agreement owing to its key importance for Hungary's external relations, that agreement must be promulgated in the form of an Act or, in other cases, a Government Decree. Authorisation to recognise the binding validity of an international agreement is contained in a promulgating legal act. In the Act promulgating an international agreement, the date of the entry into force of the provisions containing the text of the agreement and reservations, objections and declarations must be set as the same date as entry into force of the agreement in Hungary. If the latter is not yet known when the agreement is promulgated, the conditions for the agreement's entry into force must state that the date of its entry into force will be established by the Minister of Foreign Affairs in a decision to be published in the Hungarian Gazette (Magyar Közlöny).

The Constitution of Hungary also provides for another method of incorporating supranational legal acts into the internal legal system. Under Article 7(1) of the Constitution, Hungary's legal system accepts the generally recognised principles of international law and harmonises domestic law with the obligations assumed under international law. Under Article 8(1) of the Constitution, Hungary recognises inviolable and inalienable fundamental human rights; the respect and protection of these rights are a primary obligation of the State.

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European Community law is transposed into the Hungarian legal system by subject-based legal regulations at the level specified by the Constitution and the Legislation Act.

IV. The different organs authorised to adopt legal regulations

In Hungary, the National Assembly, the Government, the members of the Government, the President of the Hungarian National Bank and the local governments may adopt legal regulations.

The National Assembly, as the highest organ of state power and democratic representation in Hungary, adopts the Constitution of Hungary and is authorised to adopt Acts.

The Government is the central organ of executive power. It is at the top of the public administration and controls and coordinates the activity of public administration authorities. Its members comprise the Prime Minister and the Ministers. The Government can enact decrees within the sphere of its authority specified by the Constitution and under legal authorisation. Government Decrees must not conflict with Acts of Parliament.

The members of the Government are the Prime Minister and the Ministers. The Prime Minister chairs Government meetings and oversees the enforcement of Government decrees and decisions. Ministers head the sectors within their remit in accordance with legal regulations and Government decisions, and direct the activities of bodies under their authority. Where authorised by Parliamentary Acts or Government Decrees, ministers may issue decrees within their sphere of authority. Ministerial Decrees may not conflict with Acts of Parliament or Government Decrees.

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The local government is a local public body which is democratically elected and run. It independently regulates and directs local public affairs within its remit in the interests of local residents under the framework established by the law. Local governments may, where authorised by the law, issue decrees regulating their own affairs. Such decrees must not be incompatible with any higher legal regulation. Local government may issue decrees regulating public affairs that are not regulated by higher legal regulations.

The President of the Hungarian National Bank may, in a field specified by a separate Act, issue provisions in central bank decrees that are binding on financial institutions and legal persons not qualifying as financial institutions but offering additional financial services, as well as on investment service providers and clearing houses. Central bank decrees must not conflict with the law.

V. The process of adopting legal regulations

Legislation is passed when social or economic processes require it, when the regulation of the rights and obligations of citizens make it necessary, and when a European Community law has to be transposed into Hungarian law. The adoption of a legal regulation is preceded by an analysis of the field to be regulated. It is always the Minister designated or competent in respect of the field to be regulated that prepares the draft legislation. Depending on the level of the legislation, the competent ministry will send the prepared draft for administrative consultation to other ministries, representative organisations and other bodies concerned by the legislation. At the same time, under Article 9 of Act XC of 2005 on the freedom of electronic information, the body that drafted the text must publish it (apart from the exceptions specified therein) on its homepage, where the public can make comments or suggestions. The body that submitted the draft revises it on the basis of the expert opinions received in the course of consultation, and the public's comments.

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After the administrative consultation process, the draft legislation to be submitted to the Government is discussed at the Meeting of Administrative State Secretaries, which decides whether or not the draft is ready for submission. The Meeting of Administrative State Secretaries is the last forum for technical discussion of the draft and discusses technical/conceptual issues on which agreement was not reached during administrative consultation.

The documents discussed by the Meeting of State Secretaries and found suitable for submission are duly submitted to the Government. At the Government meeting most submissions are adopted without discussion, but important ones or those that are problematic from a political point of view are discussed by the Government and adopted (or otherwise) thereafter.

In the case of bills, the next step in the legislative process is the tabling of the bill in the National Assembly. The bill is then discussed by the designated parliamentary committees and the plenary meeting of the National Assembly. The parliamentary committees and any Member of Parliament may table amendments to the bill. The National Assembly votes separately on the adoption of the amendment proposals and then on the bill as a whole.

The legislation must be promulgated in Hungary's official journal, the Magyar Közlöny [Hungarian Gazette], a digital copy of which must also be made public. Exceptionally, an annex to a Ministerial Decree – if it does not concern citizens directly – may also be made public by publishing it in the Ministry's official journal. A local government decree must be promulgated in the local government's official journal in the usual manner, established by the operational and organisational regulation of the local government.

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VI. Entry into force of national rules

The validity of legislation extends to private persons and legal persons residing in Hungary and to Hungarian citizens residing abroad. The validity of decrees issued by local government extends to the local government's area of jurisdiction.

The Legislation Act prohibits retrospective validity, stating that a legal regulation cannot establish obligations or declare any conduct illegal for the period preceding its promulgation.

The legislation must always establish the date of its entry into force in such a way that sufficient time remains to prepare for its application.

The legislation and its implementing regulation must enter into force at the same time. A legal regulation loses its force if another legal regulation repeals it or if the deadline specified in the legal regulation expires.

VII. Means of resolving contradictions among sources of law

Regulations must not lay down rules that are inconsistent with the provisions of another regulation at the same or a higher level. If contradictions do occur, the legal system provides adequate means for removing them.

Usually the contradiction comes to light during preparation of the legislation concerned; in such cases the situation can be remedied before the regulation is adopted. However, sometimes a conflict between different standards may become apparent only during their application. In such cases the judicature must try to resolve the contradiction with the help of general legal principles. One such principle is that if a regulation conflicts with a higher regulation, the latter prevails. Another is that a special regulation takes precedence over a general one and that a later legal regulation takes precedence over an earlier one.

Where legal regulations at the same level are concerned, conflicts that do not entail an infringement of the Constitution are in general resolved via interpretation of the regulation by the judicature. With the help of the above legal principles, the judicature decides which of the conflicting provisions should prevail. According to the practice followed by the Constitutional Court, if the regulation giving rise to the conflict infringes a provision of the Constitution, an unconstitutional situation arises, in which case the Constitutional Court repeals the unconstitutional provisions.

A conflict between norms may come to light before any actual problem in application occurs. In such cases the legislator eliminates the contradiction by amending the regulation.

In the case of Acts, the President of the Republic may, if he considers that a provision of a regulation that has already been adopted by the National Assembly but not yet been promulgated infringes the Constitution, ask the Constitutional Court to scrutinise the Act (constitutional veto). If the Court decides that the regulation indeed infringes the Constitution, the National Assembly must take steps to remedy the unconstitutionality.

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Last update: 20-08-2007

 
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