6 October 2020
In a progressive decision, the Hungarian Constitutional Court has reinforced the country’s nature conservation system. The decision on the 2017 amendment of the Act XXXVII of 2009 on Forest, Forest Protection and Management, published on June 15, 2020, clearly implies that those in charge should protect the environment at the cost of short-term economic profits.
The proceedings were initiated by the Commissioner for Fundamental Rights, based on a complaint from a group of environmental NGOs who were concerned that controversial 2017 changes made to the Forest Act considerably weakened protection of sites and species. The Commissioner executed his constitutional right to request the Court to examine conformity of law with the Constitution.
Article P (1) of the Constitution
The Constitutional Court based its analysis on Article P (1) of the Constitution which says:
‘[n]atural resources, in particular arable land, forests and the reserves of water; biodiversity, in particular native plant and animal species; and cultural artefacts, shall form the common heritage of the nation, it shall be the obligation of the State and everyone to protect and maintain them, and to preserve them for future generations.’
In its decision, the Court emphasised that, by explicitly referring to forests, the Constitution creates a system of protection from an intergenerational perspective. The protection system is based on the concept of public care for environmental and natural values. The state acts as a trustee for the future generations and should allow those living in present time to use and exploit these resources only to the extent to which they do not jeopardise the long-term survival of natural and cultural values.
The principle, requiring preservation of natural and cultural resources for future generations, can thus be considered a part of newly established and consolidated universal customary law, and expresses the constitutional commitment to preserve environmental, natural and cultural values . By making this reference, the Court stressed the fact that the principle of preserving nature for future generations has an international dimension. It can be assumed that the Court did this to reinforce the principle’s binding force.
The Court recognised that forests serve a number of functions: they determine the nature of the landscape, maintain biodiversity, allow for the production of renewable energy and sustenance, as well as making the human environment beautiful, comfortable and healthy .
Forest protection is, therefore, an obligation not only for the state but for everyone. Forests have common heritage status, which imposes responsibilities on forest landowners, managers and recreational users. All these parties have to follow the rules of sustainable forestry. These requirements affect in particular the state and forest owners by limiting full and unconditional freedom in decision-making. Instead, they are required to ensure that their forest management is responsible, sustainable and takes into account the interests of future generations .
Based on Article P (1) of the Constitution, when weighing current economic interests against the protection of natural and cultural values for future generations, the latter prevails . The mere risk of environmental deterioration may eventually lead to the breach of the Constitution .
The Court stated that Natura 2000 sites derive protection from Article P (1) of the Constitution. Article P (1) creates an obligation on authorities and on every person to effectively protect and preserve this heritage . The state-owned forests with Natura 2000 protection are of unquestionable natural value, therefore, clearcutting is a last resort and can be conducted only if no other means are possible in a given case .
Owning or managing a forest incurs extra responsibilities. Forest management cannot be treated as the exclusive business interest of a person with forest ownership or land use rights – so ownership does not only represent individual rights but also rights of a society as a whole. A legal framework allowing the private interests of forest managers to triumph over nature protection is neither proportionate nor justifiable and therefore is unconstitutional . This is where the public interest of nature protection prevails over the private interests of forest owners and managers.
The Hungarian Constitutional Court’s decision is a milestone in nature protection in the country. The Court based its reasoning on the non-derogation principle, according to which a state is not allowed to step back from the level of environmental protection it already guarantees, and the precautionary principle which requires decision-makers to adopt precautionary measures when scientific evidence about an environmental or human health hazard is uncertain. These two principles were linked to to Article P (1) of the Constitution.
The decision clearly implies that those in charge should prioritise protecting the environment over short-term economic profits. They should ensure that the natural heritage is preserved for the future generations. This is an important ruling that sends a clear message to decision-makers in other EU member states.
It is not only Hungary that has been facing threats to its protected forests. The longer-term, future-orientated perspective is generally missing in forest management. In Hungary’s neighbouring country, Romania, large-scale logging is taking place and old-growth primary forests are being destroyed for profit. This clearly reflects a growing and worrisome trend.