2016 Global Review of Constitutional Law

that the ongoing discussion of the ordinary
courts and the CC on the legality and the
constitutionality of publishing photographs
alike is far from ending. 6
In Decision 8/2016 (IV. 6.), the CC
declared that funds used by the foundations
established and companies owned by the
National Bank of Hungary are public funds;
therefore the information regarding their
expenditure shall be qualified as information
in the public interest. The case was initiated
by the president of Hungary (the head of the
state) as an ex-ante review of the amendment
to the Act on the National Bank of Hungary,
which stipulated certain restrictions on
public information. According to the
amendment, data regarding the functioning
of the companies owned by the National
Bank were considered part of a decisionmaking
process and therefore secret for
30 years while information regarding the
functioning of the foundations established
by the National Bank were deemed similarly.
According to the CC, companies owned by
the National Bank are indirectly owned by
the state; therefore the information regarding
their activity is by definition data of public
interest. Concerning the foundations
established by the National Bank, taking
into consideration the source of their assets
and their activity, the CC declared that their
funds are public funds and are performing
public tasks. The CC finally declared that the
challenged provisions were unconstitutional,
as there was no legitimate aim to limit the
freedom of public information. Overall the
decisions on the right to information show
that the CC is often up to fight against the
restrictive interpretation of ordinary courts
or ready to challenge government attempts.
Selectivity in the protection of the rule of law
Decision 7/2016 (IV. 6.) examined the
retroactive effect of certain provisions of
the amendment to the Act on the Hungarian
Post Office. The case was initiated by the
president of Hungary as an ex-ante review.
The new regulation introduced a limitation
on the publicity of data regarding the business
activity of the Hungarian Post Office and its
companies in order to protect their business
interests from other competitors present
on the market. The constitutional dilemma
could have been quite similar to the case of
the amendment to the Act on the National
Bank of Hungary: the president here did
not object to the limitation of the public
access to these data. The petition claimed
simply that the retroactive introduction of
the new provisions was unconstitutional.
According to CC case law, a piece of
legislation with retroactive effect is not
always unconstitutional, but only when it has
a punitive or more burdening effect. The CC
argued in this 2016 case that the examined
provisions have no punitive or burdening
effect. As they are only of a clarifying nature
to the conditions for exercising the freedom
of information, the retroactive effect of the
law was found constitutional.
In Decision 23/2016 (XII.12.) the CC
examined the constitutionality of the Act
on the special reimbursement program open
for capital market investors. Those investors
who lost property due to the bankruptcy of
big brokerage companies could take part
in the reimbursement program. The loss
was caused by systemic irregularities in
brokerage activities. Due to the fact that the
examined regulation contained limitations
of the access to reimbursement in many
aspects, dozens of constitutional complaints
were submitted, claiming that the act in
question limited the fundamental rights of
the complainants (equal treatment, the right
to property, the rule of law and the right to
fair trial). The CC declared that the system
of reimbursement established by the law is
of an ex gratia nature based on equity, which
constitutes no ground for such right-based
claims. In other aspects, the CC found the
regulation reasonable and based on public
interest. The constitutional complaints were
therefore rejected. The Constitutional Court
in this decision also rejected the constitutional
complaints of financial institutions as the ex
gratia remedy for the loss investors were to
be offered by all financial institutions. The
institutions are to be compensated for this
actual violation of their property rights only
in a later stage, according to the Act CXXIV
of 2015 on the stability of the capital market.
Some financial institutions claimed that the
measures implemented by the act were not
proportionate concerning the limitation of
their right to property, but the CC declared
the constitutionality of the related, highly
problematic provisions as well.
In several constitutional complaint decisions
in 2016, the CC further declined to overturn
the decisions of ordinary courts in cases
concerning foreign currency loan contracts. 7
The economic crisis of 2008 and especially
the rapid exchange rate depreciation of the
Hungarian forint resulted in a significantly
worsened situation of debtors. Legislative
acts aiming to help the situation and
related judicial decisions were reviewed
by the Constitutional Court continuously.
Novel constitutional ideas, unconventional
constitutional measures and new doctrinal
solutions were born in foreign currency loanrelated
decisions. In 2016, in constitutional
complaint procedures, the CC enhanced
its position developed already in 2014 and
2015. In its Decision 34/2014 (XI. 14.),
it examined the unconstitutionality of the
legislative act regulating basically two
questions: whether exchange rate margins
in foreign currency loan contracts are null
and void and whether unilateral amendments
to contracts are unfair. 8 According to the
Constitutional Court, the rules did not attain
the level of unconstitutionality either in the
details or as a whole. The act did have a
restrictive effect on the fundamental rights
in question, but the restriction itself could
not be considered unconstitutional under
a proportionality test. In Decision 2/2015
(II. 2.), the petitioner judges claimed that
the principle of separation of powers, right
to fair trial, the rule of law and the legal
certainty were breached in credit crunch
related legislation. 9 The Constitutional
6
Éva Balogh, ‘A megkülönböztetés művészete: bírói mérlegelés a közszereplőkkel kapcsolatos közlések szabadsága kapcsán’ (2016) Fundamentum 1.
7
Decisions 3103/2016. (V. 24.), 3098/2016. (V. 24.), 3167/2016. (VII. 1.), 3222/2016. (XI. 14.), 3272/2016. (XII. 20.).
8
Act XXXVIII of 2014 on the Resolution of Questions Relating to the Uniformity Decision of the Curia Regarding Consumer Loan Agreements of Financial
Institutions.
9
See also Act XL on the Rules of Settlement Provided for in Act XXXVIII of 2014 on the Resolution of Questions Relating to the Uniformity Decision of
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