1. National judicial organisation
1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order
In Hungary, justice is administered by the Curia of Hungary, the regional appellate courts, the high courts, the district courts, as well as the administrative and labour courts. The court system is presented by the graph hereunder:
1. The Curia of Hungary is at the top of the judicial hierarchy. The Curia guarantees the uniform application of law, its uniformity decisions are binding on all other courts of the country. The Curia a) examines appeals submitted against the decisions of the high courts and the regional appellate courts in cases defined by law, b) reviews final decisions if they are challenged through an extraordinary remedy, c) adopts uniformity decisions which are binding on all other courts, d) analyses final decisions to examine and explore the courts’ practice, e) publishes decisions and rulings of principle, f) passes decisions in cases where local government decrees violate legal rules, and g) passes decisions in cases where the local government fails to legislate as laid down in the Act on Local Governments. At the Curia, adjudicating, uniformity, municipality and publication panels operate within three different departments (criminal, civil as well as administrative and labour), in addition, jurisprudence-analysing working groups may be set up.
2. There are five regional appellate courts between the level of the high courts and that of the Curia. Appeals may be lodged against the decisions of the high courts with the regional appellate courts. The latter may also act as a court of third instance in criminal cases in which the second instance decision was rendered by a high court. At the regional appellate courts, adjudicating panels operate within one of their two departments (criminal and civil). Regional appellate courts, on the other hand, are not entitled to hear administrative cases.
3. The high courts may act either as first or as second instance courts, depending on the relevant pieces of procedural legislation. At the high courts, adjudicating panels and groups operate within four different departments (criminal, civil, economic as well as administrative and labour). As of 1 January 2018, the High Court of Budapest shall have exclusive competence and territorial jurisdiction over first and second instance cases which would otherwise fall within the high courts’ competence.
4/a. There are altogether 112 district courts (106 in the countryside and 6 in the 23 districts of the capital city of Budapest) in Hungary. District courts act as courts of first instance in civil and criminal cases.
4/b. In Hungary, there are 20 administrative and labour courts which act as courts of first instance in administrative and labour disputes. As of 1 January 2018, the majority of new cases are to be dealt with by eight regional administrative and labour courts. The latter are entrusted with the tasks of reviewing the legality of administrative decisions and providing legal protection against those actions and omissions of the administrative bodies which have as their object or effect the change of the legal status of the person bringing an action to court.
1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts
- Act no. XXVI of 1896: establishment of the Royal Administrative Court of Hungary – a court with organisational independence and general competence.
- Act no. II of 1949: dissolution of the Royal Administrative Court of Hungary.
- Act no. IV of 1957 on the General Rules of Administrative Proceedings: it made it possible, under exceptional circumstances, to request the court review of a limited range of administrative decisions.
- As of the year 1973, the court review of administrative decisions had been regulated by the Code of Civil Procedure (Chapter XX of Law Decree no. 26 of 1972): the courts’ competence had been expanded to enable them to review the legality of administrative decisions both in litigious and non-litigious proceedings.
- Act no. I of 1981: it gave citizens the right to request the courts to review administrative decisions in the event of infringements committed by the authorities (violations of the citizens’ constitutional rights and other fundamental personal, family and pecuniary rights). The scope of administrative decisions susceptible to court review was defined by Council of Ministers Decree no. 63/1980 of 5 December 1980.
- 23 October 1989: modification of Act no. XX of 1949 on the Constitution of the Republic of Hungary. According to its modified section 50, subsection (2), the courts shall review the legality of administrative decisions.
- Act no. XXVI of 1991 on the Extension of the Possibility of the Court Review of Administrative Decisions: it aimed at implementing the provisions of section 50, subsection (2) of the Constitution, but did not result in the establishment of a separate system of administrative justice (no independent administrative courts, no separate code of administrative litigation, the rules of administrative court proceedings were set forth in the Code of Civil Procedure).
- Act no. CLXI of 2011 on the Organisation and Administration of the Courts of Hungary: administrative and labour courts were established within a single judicial system.
- 1 January 2018: entry into force of Act no. I of 2017 on the Code of Administrative Litigation – a separate procedural code to regulate administrative court proceedings (instead of some specific provisions in the Code of Civil Procedure).
- 6 November 2018: submission of Bill no. T/3353 on Administrative Courts and Bill no. T/3354 on Some Transitional Arrangements Related Thereto; the aforementioned bills aim at setting up a separate system of administrative justice with the introduction of administrative high courts and the Higher Administrative Court.
1.3. Criteria of competence of the administrative jurisdiction
A legal action for the court review of an administrative decision may be brought before an administrative court. The term “administrative decision” includes the followings: any decision rendered by an administrative authority or by the head of such authority in an administrative action, any ruling for ordering enforcement in the event of any breach of an obligation contained in an administrative agreement, any decision adopted by a local government as specified by law, as well as any other decision susceptible to court review as specified by law.
Administrative decisions may be reviewed before court under the following cumulative statutory conditions:
- the impugned decision is (allegedly) unlawful,
- the party has exhausted all legal remedies within the system of administrative authorities, and
- the decision’s court review is not excluded by law.
Unlawfulness means any violation of substantive or procedural legal provisions. An administrative decision is deemed unlawful if it does not comply substantially with the applicable pieces of legislation, if it has been delivered on the basis of the wrong legal provisions, or if the applicable pieces of legislation have been misinterpreted. An administrative decision that has been rendered in violation of the procedural requirements may be reviewed before court only if the procedural infringement has been significant and has affected the very substance of the administrative decision.
A decision cannot qualify as an administrative decision rendered in an administrative law relationship if there is no hierarchical order, but a civil law based interdependence (e.g. the administrative body acts as an owner) between the parties. In the latter case, such decision may not be subject to court review by an administrative court. Similarly, the administrative courts have no competence to review the administrative authority’s actions related to employment and service relationships.
2. Organisation of the administrative jurisdictional order
2.1. Key founding texts
- Procedural rules:
– Chapter XX of Act no. III of 1952 on the Code of Civil Procedure (as regards cases launched no later than 31 December 2017)
– Chapter IV of Act no. CLXI of 2011 on the Organisation and Administration of the Courts of Hungary (in respect of cases – to be dealt with by the Curia’s municipality panel – launched no later than 31 December 2017 where local government decrees violate legal rules, and where the local government fails to legislate as laid down in the Act on Local Governments)
– Act no. I of 2017 on the Code of Administrative Litigation (as regards cases launched on or after 1 January 2018)
- Provisions on the organisation and administration of the courts and on the determination of their territorial competence:
– Act no. CLXI of 2011 on the Organisation and Administration of the Courts of Hungary
– in respect of the establishment of a separate system of administrative justice: Bill no. T/3353 on Administrative Courts and Bill no. T/3354 on the Entry into Force of the Administrative Courts Act and on Some Transitional Arrangements Related Thereto
– Act no. CLXXXIV of 2010 on the Name and Seat of the Courts and on the Determination of Their Territorial Competence
- Provisions on the legal status of judges:
Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges
2.2. Organisation and competence of the administrative jurisdiction
2.2.1. General organisation of the administrative jurisdictional order
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?
In Hungary, there is currently no separate system of administrative justice, administrative courts operate within a single judicial system.
- As regards cases started no later than 31 December 2017, the system of administrative justice is as follows:
1.a.) In principle, administrative and labour courts act as courts of first instance. A change is that eight out of the twenty administrative and labour courts will operate as privileged regional courts. As a general rule, these privileged regional courts will act as courts of first instance. As an exception to the general rule, any of the twenty administrative and labour courts may hear cases related to social security issues, social and child care services as well as services or benefits provided by public employment bodies, and in such cases the court’s territorial competence is based on the plaintiff’s domestic place of residence or seat or on the administrative body’s seat.
At the level of the administrative and labour courts, the Administrative and Labour Court of Budapest has exclusive jurisdiction over a number of specific groups of cases: e.g. administrative lawsuits against certain decisions of the Office of the National Media and Info‑communications Authority and the Media Council of the National Media and Info‑communications Authority. In addition, there are cases that are dealt with by the High Court of Budapest as a court of first instance, e.g. lawsuits related to cases in which the Chamber of Patent Attorneys’ statutes, regulations or decisions are contrary to law or the Chamber’s statutes. In certain types of cases (such as referendum cases), the Curia has exclusive jurisdiction to act as a first instance judicial forum.
1.b.) Appeals may be submitted against the decisions of the administrative and labour courts to the high courts which, however, hear not only administrative cases, but all other types of cases as well (as referred to in the answer given under question 1.1). At the high courts, specialised administrative and labour judges act as members of the second instance forum. These specialised judges are delegated by the President of the National Office for the Judiciary upon recommendation of the presidents of the high courts concerned.
1.c.) Petitions for judicial review may be lodged – in cases specified by law – against the decisions of the administrative and labour courts and of the high courts with the Curia of Hungary as an ultimate instance judicial forum.
No further appeal or petition for judicial review may be submitted against the Curia’s decisions.
- As regards cases launched after 31 December 2017, the system of administrative justice is as follows:
2.a.) The administrative and labour courts, the High Court of Budapest (in cases specified by law) and the Curia may act as courts of first instance. The exclusive jurisdiction of the Administrative and Labour Court of Budapest has been transferred to the High Court of Budapest. The latter has exclusive jurisdiction to hear, among others, cases related to the Hungarian Central Bank’s administrative activities, the exercise of the right to peaceful assembly and the disclosure of classified information. The Curia continues to have exclusive and first instance jurisdiction regarding cases where local government decrees violate legal rules and where the local government fails to legislate as laid down in the Act on Local Governments, as well as regarding election and referendum cases. As a novelty, the Curia is given competence to determine the procedural means to remedy an impairment of constitutional rights, established by the Constitutional Court as a result of a successful constitutional complaint.
2.b.) Appeals against the decisions of the administrative and labour courts may be submitted to the High Court of Budapest (which has exclusive jurisdiction), while appeals against the decisions of the High Court of Budapest may be lodged with the Curia (the appeals being means of ordinary remedy in both cases). Under exceptional circumstances, a so‑called leaping appeal may be submitted against the decision of the competent administrative and labour court directly to the Curia (see in detail the answer given under question 4.3).
2.c.) Petitions for judicial review – against the final decisions of the administrative and labour courts and against the second instance decisions of the High Court of Budapest – continue to be dealt with exclusively by the Curia.
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?
- As regards cases started no later than 31 December 2017, the organisational structure is as follows:
In principle, administrative and labour courts act as courts of first instance. As a general rule, administrative lawsuits – if brought before an administrative and labour court acting as a court of first instance – are heard by a single judge. However, if so justified by the complexity of the case, the court of the first instance may decide before the beginning of the hearing to proceed in a panel of three professional judges.
The high courts, acting as courts of second instance, proceed in a panel of three professional judges.
Acting as a judicial review court, the Curia administers justice by way of panels comprising three professional judges. If so justified by the complexity of the case, the Curia may decide to proceed in a panel of five professional judges.
The high courts have criminal, civil, economic as well as administrative and labour departments. These departments may operate either separately or jointly with other departments, e.g. joint civil‑administrative‑labour departments may exist (for instance at the High Court of Debrecen), or even joint civil‑economic‑administrative‑labour departments may be in operation (for instance at the High Court of Szeged).
The Curia has a separate Administrative and Labour Department.
- As regards cases launched after 31 December 2017, the organisational structure is as follows:
A change is that – unless otherwise provided by law, as a general rule – administrative and labour courts, acting as courts of first instance, are to proceed in a panel of three professional judges.
Another change in respect of the system of departments is that, as of the year 2018, the regional administrative and labour inter‑courts departments constitute a special collegiate body that comprises not only the judges of the administrative and labour courts, but the administrative and labour judges of the high courts as well. The organisational framework of these inter‑courts departments is provided by the high court at which the heads of such departments administer justice or by the high court to which the administrative and labour court at which the heads of such departments hear cases belongs. There are altogether eight regional administrative and labour inter‑courts departments, one of them is managed by the High Court of Budapest, while the remaining seven operate in the countryside, covering 19 counties throughout Hungary.
2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?
No, they do not have such powers.
2.2.4. Tools and documentary resources available to judges
Judges have at their disposal the following databases and resources: publicly available legal databases, the database of anonymised court decisions, Complex database (a comprehensive legal database – including all types of legislation, whether in effect or no longer in force, the courts’ relevant case‑law, as well as explanatory notes and commentaries to the pieces of legislation – with restricted access through the judges’ workplace computers or through remote access), the New Legal Database (similar to Complex, password‑protected, but accessible via Internet at uj.jogtar.hu), the Collection of Court Decisions (a limited‑access collection which includes all the Supreme Court, Curia and regional appellate court decisions from the beginning of the 2000s), as well as the Courts’ Integrated IT System (in Hungarian: Bírósági Integrált Informatikai Rendszer – BIIR, a restricted‑access database which contains electronically produced or submitted petitions and court papers in respect of both pending and concluded court cases).
2.3. Status of administrative judges
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?
The recruitment of and the statutory guarantees protecting administrative judges are regulated by a set of general rules (covering both ordinary and administrative judges), nonetheless, there are a number of special provisions regarding the delegation of administrative and labour judges. The general rules are set forth by Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges.
The appointment process and the delegation of judges:
The service relationship of a judge comes into existence upon his appointment. Subject to exceptions set out by law, the term of a judge appointed for the first time shall be three years, in all other cases it shall be indefinite. Judges are appointed by the President of the Republic. The recommendation for appointment is submitted by the President of the National Office for the Judiciary to the President of the Republic.
Candidates to be appointed in Hungary as judges must be at least thirty years of age and shall be Hungarian citizens, shall not be under guardianship or conservatorship or under the effect of advocated decision‑making, shall have a university law degree, shall have passed the bar examination, shall agree to file an assets declaration and shall have at least one year experience as a court secretary, deputy prosecutor, attorney‑at‑law, notary public or legal counsel, or as a government official or public official at a central administrative body in an administrative position or in a position for which a bar examination is required, or as a constitutional court judge, judge, judge advocate or public prosecutor, or as a person carrying out adjudicating activities or any other activities related to the judiciary in any international organisation or any agency of the European Union.
A vacant judgeship status shall be filled by way of a public selection process, save for cases defined by law. The President of the National Office for the Judiciary is given competence to publish the notice of vacancy. Applications are to be submitted to the president of the administrative and labour court concerned, if the vacancy is at the latter court.
All appointments are subject, among others, to a professional aptitude test which includes medical and physical examination, as well as psychiatric assessment. The examinations shall cover all mental and health considerations that may preclude or severely impair the judge’s performance, and shall assess the judge’s intelligence and personality. Professional aptitude tests and professional aptitude test reviews are carried out by a body of forensic experts designated by the minister in charge of the judicial system, in agreement with the President of the National Office for the Judiciary.
The criteria to be taken into account in the determination of the ranking of applicants are contained in the Act on the Legal Status and Remuneration of Judges, while the system of the number of points to be awarded for the purpose of ranking (with special provisions in respect of administrative judges) is set forth by a separate government decree (Government Decree no. 7/2011).
After the expiry of the deadline for applications, the judiciary council of the administrative and labour court concerned shall interview the applicants within fifteen days and shall determine the ranking of applicants based on the number of points awarded. The President of the National Office for the Judiciary may deviate from the ranking of the judiciary council. If the President of the National Office for the Judiciary is in agreement with the appointment of the applicant ranked first and the latter is other than a judge, the President of the National Office for the Judiciary shall conclude the selection process by forwarding the application to the President of the Republic within eight working days for the purpose of appointment. If the first ranked applicant is a judge with the appointment of whom the President of the National Office for the Judiciary agrees, then the latter shall conclude the selection process by transferring the judge within eight working days.
The delegation procedure applies to judges already appointed through the aforementioned appointment process. High court judges hearing administrative and labour cases are to be delegated by the President of the National Office for the Judiciary upon recommendation of the president of the high court concerned. The members of the Curia’s municipality panel – dealing with cases where local government decrees violate legal rules, and where the local government fails to legislate as laid down in the Act on Local Governments – are to be delegated by the President of the Curia.
– Judges shall proceed in all cases without prejudice and free from influence. There are a number of conflict of interest rules to guarantee the judges’ unbiased decision‑making process, including the followings: judges may not hold membership in any political party and may not engage in any political activity, they may not be Members of Parliament, Members of the European Parliament, council members of local governments, spokespersons for a national minority, mayors, members of the Government or government executives, they may not engage in any other gainful activities with the exception of scientific, educational, artistic, etc. activities, they may not hold any executive office in a business association, cooperative association or cooperative society or membership requiring personal involvement, nor may they be members of the supervisory board of a business association, cooperative association or cooperative society, they may not hold membership in a business association, cooperative association or cooperative society with unlimited liability, they may not hold membership in a sole proprietorship, and may not hold any executive office in a public‑benefit organization that is engaged in the pursuit of economic‑business activities.
– Judges shall safeguard any and all classified information both during and after their term of office.
– Judges shall be granted the same privilege of immunity as Members of Parliament.
– In order to enforce fundamental rights and commitments in an unbiased and objective fashion, apprehend any form of immoral conduct on the part of public officials and to fight corruption, judges shall be required to file an assets declaration and they shall be required to update their previous assets declarations every three years to reflect any increase in their personal wealth and the sources thereof. Judges shall also be required to file a separate assets declaration for their spouses, domestic partners and children who live in the same household.
– The performance of a judge appointed for an indefinite term following a fixed‑term appointment shall be evaluated in the third year after the time of appointment, then at eight‑year intervals. If the judge was appointed initially for an indefinite term, the judge’s performance shall be evaluated within three years of the time of appointment and in the sixth year after that, then at eight‑year intervals. Examinations underlying evaluation shall cover – on the basis of concluded cases – the substantive, procedural and administrative elements of the proceedings of a judge in terms of application and presiding over hearings.
3. Procedural rules before administrative courts
3.1. Types of plea
What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
As regards cases started no later than 31 December 2017:
The plaintiff may bring a legal action before the court of first instance for the review of an impugned administrative decision, pleading infringement of the law. An appeal may be submitted – in cases and under conditions defined by law – against the decisions of the administrative and labour courts to the high courts, while a petition for judicial review may be lodged against the final decisions of the administrative and labour courts and of the high courts before the Curia.
As a general rule (unless otherwise provided by law), the parties may request the court – except for non‑substantive procedural irregularities – to quash the unlawful administrative decision and order the administrative authority to reopen its proceedings (in general due to an insufficient establishment of the facts or an inappropriate assessment of the pieces of evidence).
In certain cases, the parties may also request the court to modify the impugned administrative decision, e.g. if the latter has been rendered in respect of the placement of a minor in a suitable child care institution, parental custody rights, the registration of rights and facts relating to an immovable property and the establishment of tax and duty liabilities.
No compensatory claims may be submitted within the framework of administrative court proceedings.
As regards cases launched after 31 December 2017:
The plaintiff may bring a legal action before the court of first instance. Unless otherwise provided by law, an appeal may be submitted against the first instance judgement by the parties, any other interested persons or any other persons concerning the judgement’s provisions expressly pertaining to them, pleading infringement of the law. The first instance judgement of the High Court of Budapest may also be subject to appeal.
If, on the basis of the plaintiff’s claim, the court finds that there has been a violation of the party’s rights, it may modify, annul or quash the administrative action and, if necessary, may order the administrative authority to reopen its proceedings, or may condemn the latter. In addition, the law may provide for the application of other legal consequences as well.
With regard to the above, the plaintiff may request the court to:
– quash, annul or modify the administrative action,
– establish that the administrative authority has failed to carry out an administrative action,
– prohibit the administrative authority from carrying out an administrative action,
– order the administrative authority to comply with its obligations arising from an administrative law relationship,
– order the administrative authority to pay compensation for the damage suffered by the party in connection with an administrative contractual relationship or a public service relationship,
– establish that there has been a violation of rights as a result of an administrative action or establish any other fact that is of relevance in respect of an administrative law relationship.
3.2. Emergency procedures
Emergency procedures are to be followed only in connection with some specific types of cases.
For instance, petitions for judicial review submitted to the Curia in election and referendum cases have to be dealt with within three days.
Moreover, the Act on the Rights of National and Ethnic Minorities stipulates that petitions for judicial review regarding the establishment of the so‑called unworthiness shall be dealt with by the Curia within three days as well.
3.3. Procedural principles before administrative courts
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
In administrative court proceedings, the parties shall have, in particular, the right to effective judicial protection and the right to a fair trial. These rights include the followings:
– right to an impartial tribunal
– right to a fair trial and right to appeal (the court deals with the case, in principle, without holding a hearing, however, the parties may request the court to hold one)
– principle of equality of opportunities or arms, in particular regarding the taking of evidence and the assessment of the pieces of evidence
– the court’s obligation to give reasons for its decisions
– the concentration of proceedings: it aims at clarifying the circumstances of the parties’ dispute at as early a stage as possible and ensuring that all facts and pieces of evidence necessary for the delivery of judgement be at the court’s disposal as early as possible
– obligation to inform the parties: the court shall ensure that the parties be informed of any and all petitions, legal statements and documents submitted to the court during its proceedings and that they be given the possibility to express their views on them within the procedural deadlines prescribed by law
– principle of cost‑effectiveness
– the principle according to which the parties’ procedural actions should be assessed on the basis of their substance, which has two main elements: i. the court’s obligation not to go beyond the limits of the legal action is not contrary to the above principle, and ii. the court is entitled to review the legality of the administrative decision on the basis of the latter’s substance and irrespective of the latter’s formal designation.
The right to effective judicial protection and the right to a fair trial, on the other hand, have limitations, such as the followings:
– the court proceeds only upon the parties’ requests and it is not allowed to carry out actions ex officio, but this principle does not have unrestricted application: the court may order any investigation or taking of evidence, may make a reference for a preliminary ruling to the European Court of Justice and may initiate the proceedings of the Constitutional Court in connection with any law or statutory provision, legal act for the governance of bodies governed by public law or uniformity decision that is alleged to be contrary to the Fundamental Law (Constitution) of Hungary or to an international treaty ex officio
– the court’s obligation not to go beyond the limits of the legal action: the plaintiff’s action determines the scope of the administrative decision’s court review
– the authority of res judicata: the administrative authorities and the court reviewing the legality of the authorities’ reopened proceedings may not go beyond the scope of the court’s first reviewing decision
The parties’ obligations: they shall
– act in good faith and cooperate with the court,
– make their factual claims and statements truthfully,
– unless otherwise stipulated by law, provide the court with all the facts, data and pieces of evidence that are necessary for deciding on the parties’ legal dispute.
3.4. Reference standards for the control exercised by administrative judges
In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
Courts dealing with administrative cases are not competent to control the conformity of laws and regulations with the Fundamental Law. Nor are they entitled to requalify a piece of legislation as an individual administrative decision in order to quash or modify it.
As an exception to the above general rule, the Curia’s municipality panel is given competence to hear cases where local government decrees violate legal rules, and where the local government fails to legislate as laid down in the Act on Local Governments. On the other hand, if a local government decree is allegedly contrary to the Fundamental Law, it is not the Curia’s municipality panel, but the Constitutional Court which is entitled to review the constitutionality of such local government decree.
According to Act no. CXXX of 2010 on Legislation, it shall be ensured during the drafting of legislation that the latter be in compliance with the country’s legislative obligations arising from international and European Union law. Pursuant to the consistent case‑law of the Curia’s municipality panel, the latter is entitled to review the conformity of local government decrees with Hungary’s legal obligations arising from international and European Union law (see in that regard decision no. Köf.5037/2016/4 of the Curia’s municipality panel). The municipality panel has already examined the conformity of a local government decree with European Union law (in the municipality panel decision referred to above), but has not yet dealt with the issue of compliance with international law.
3.5. Scope and nature of administrative judicial review
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
- According to the procedural rules to be applied in respect of cases started no later than 31 December 2017, an administrative lawsuit can be defined as follows: a lawsuit for the court review of an administrative decision rendered by an administrative body or by any other body authorised to deal with administrative cases. By virtue of that definition, an administrative contract does not constitute an administrative decision (except if otherwise provided by law) and legal disputes regarding public service and administrative contractual relationships do not qualify as administrative lawsuits (hence, legal disputes arising from a public service relationship are to be dealt with as labour law disputes).
There are certain types of administrative cases, launched no later than 31 December 2017, in which the authority’s decision cannot be brought to court by virtue of the law, such as the followings: decision on the independent prohibition of entry into and stay in the territory of Hungary, decision on the declaration of the termination of an agricultural land privatisation committee, decision rendered on an equitable basis (e.g. the establishment and increase of exceptional pension benefits, the granting of a single social aid, debt relief and waiver, as well as the granting of payment facilities).
- The Code of Administrative Litigation, entered into force on 1 January 2018, gives the following definition: the subject of the administrative dispute is the lawfulness of the act of the administrative body regulated by administrative law, aiming at or resulting in changing the legal position of the subject‑at‑law affected by such act, or the omission of such act. The newly adopted term administrative act has a broader meaning than the previously applied term administrative decision, since the administrative authorities may proceed not only in administrative law relationships and may apply not only administrative law. An administrative act may be an individual decision, the authority’s action, a provision of general effect to be applied in an individual case, and an administrative contract as well. Legal disputes related to public service and administrative contractual relationships also qualify as administrative disputes.
In some cases, however, no administrative dispute can be launched (unless otherwise provided by law):
– in relation to the Government’s activities, in particular in the field of national defence, alien administration and foreign affairs,
– independently with respect to the lawfulness of an ancillary administrative act serving to realise an administrative act,
– between parties that are in a control or governance relationship with each other.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
The principles referred to hereunder had already been applied with respect to cases started no later than 31 December 2017, but the Code of Administrative Litigation (to be applied to cases initiated after 31 December 2017) expressively stipulates them:
– In the scope of the examination of the lawfulness of an administrative act carried out through the exercise of the authority’s discretionary powers, the court also has to assess whether the administrative body exercised its competence within the frameworks of its authorisation for deliberation, whether the criteria of deliberation and their causal relation as to weighing the evidence can be ascertained from the document containing the administrative act.
– In adopting its decision the court is not bound by any other authority’s decision or any disciplinary decision and the facts established therein. On the other hand, if the consequences of a criminal offence adjudged by a final decision must be resolved in an administrative lawsuit, the court may not declare that the convict has not committed the criminal offence he had been charged with.
– The court shall examine the lawfulness of the administrative act within the limits of the statement of claims.
– The final nature of the judgment passed with regards to the examination of the lawfulness of an administrative act precludes the parties or other persons concerned to bring a new action for the examination of the lawfulness of the same administrative act or make it otherwise disputable.
– The court shall examine the lawfulness of the administrative act – unless otherwise provided by law – on the basis of the facts existing at the time it was realised.
3.6. Dissident opinions
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
As regards cases launched no later than 31 December 2017, the general rules of the Code of Civil Procedure had to be applied to administrative lawsuits as well: the court shall adopt its decision – if acting in a panel – after deliberation in closed session by way of voting. If the decision is not unanimous, it shall be passed by simple majority. The judge outvoted shall have the right to attach his dissenting opinion in a sealed envelope to the documents of the case. The minutes of the deliberation and the dissenting opinion may be reviewed only by the court of appeal.
3.7. Alternative methods of dispute resolution
Are there alternative dispute resolution methods? Please specify.
In administrative cases, the parties are not given the possibility to use alternative dispute resolution methods (mediation etc.).
3.8. Digitised procedures
Is there a specific digital procedure for the submission of claims?
The general provisions on electronic communication of the Code of Civil Procedure are to be applied to administrative disputes as well. There may be some specific rules, for instance, petitions for judicial review in respect of election cases shall be submitted directly to an electronic mail address created by the Curia (email@example.com).
4. Effects and execution of judgments
4.1. Powers of administrative judges
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
One of the essential novelties of the procedural rules to be applied to cases started after 31 December 2017 is the introduction of a general reformatory power to modify the impugned administrative act. This power had already existed with respect to certain types of cases (see the answer given under question 3.1.). The court may reverse the administrative act if the nature of the case allows it, the facts are properly clarified, the reversal is not excluded by law, and, on the basis of the information available, the legal dispute can be definitively decided. Based on this reformatory power, the court is entitled to modify or supplement both the operative part and the reasoning part of the administrative authority’s decision.
On the other hand, no reversal may be made by the court in the case of a provision of general effect to be applied in an individual case (e.g. statutes of public bodies, communications of the Hungarian Competition Authority), an administrative act adopted under the principle of deliberation, an administrative act based on the exercise of discretionary powers regarding payments affecting the budget or if precluded by law.
Another procedural novelty is that, if an infringement is established, the court shall ex officio oblige the administrative body to eliminate the consequences of the activity that infringes the injured party’s rights. In that context, the court may order the repayment of appeal fees, the costs of administrative proceedings and administrative fines or the re‑entry of rights in an official registry.
If the court orders the administrative body to reopen its proceedings, then the latter is bound both by the operative part and the reasoning part of the court’s judgement.
The procedural rules to be applied to cases launched after 31 December 2017 expressively stipulate that the court shall give the administrative body definite guidelines covering all essential points of remedying the established infringement with regards to conducting the reopened proceedings or implementing the act ordered in the judgement (the courts had already been given such possibility concerning cases started no later than 31 December 2017, but they had not been obliged to do so). As an additional novelty, in the case of the administrative body’s non‑compliance, the court is given competence to impose a performance penalty and to take a number of measures, such as to appoint another administrative body to comply with the court’s judgement.
4.2. Impact and authority of administrative judgements
To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?
Binding effect: Unless otherwise provided by law, the court shall be bound by its own decision in the legal action in which it was rendered, from the time of publication of the decision, or if it was not published, from the time of delivery. On the other hand, the court shall not be bound by any ruling relating to the conduct of proceedings, or refusing any unilateral request, however, the court shall be able to modify any ruling for the refusal of certain acts that have to be performed within a certain time limit during the proceedings before it becomes final and enforceable.
Procedural res judicata: being relatively unchallengeable. That principle implies that no means of ordinary remedy or no appeal may lie against a given decision. The latter has the force of procedural res judicata if no appeal can be submitted against it, the parties failed to submit an appeal against it within the prescribed time limit, or the parties waived their right to appeal or revoked their appeal.
Substantive res judicata: The final nature of the judgement passed with regards to the examination of the lawfulness of an administrative act precludes the parties or other persons concerned to bring a new action for the examination of the lawfulness of the same administrative act or make it otherwise disputable.
Other binding effects:
– a claim for compensation for damage that has arisen from an unlawful administrative act may be enforced only in the event of the establishment of the administrative authority’s infringement by a final administrative court decision (if the court review of the administrative decision concerned is allowed);
– the administrative court’s final decision on the lawfulness of an administrative act is binding on courts dealing with civil cases as well;
– if the administrative body does not comply with the court’s final judgement and, in its reopened proceedings, it takes an act contrary to the court’s final judgement, then the court shall – if the nature of the case allows it – reverse the administrative act, which means that in such cases the court is not allowed to order the administrative body to reopen its proceedings for a second time (as a result of the effect of res judicata);
– court decisions as authentic instruments: the court’s final judgement (e.g. the facts established therein) may be used as a piece of evidence in other proceedings.
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?
- As regards cases started no later than 31 December 2017, the system of judicial remedies in respect of the decisions of administrative and labour courts is as follows:
1.1. Appeals (means of ordinary remedy) submitted against the decisions of administrative and labour courts are to be dealt with by the high courts. An administrative court decision may be subject to appeal only if the administrative authority’s decision the court review of which was requested had been rendered in the first instance and could not be appealed through administrative channels, and the administrative court had powers to reverse such decision on the strength of the law. [As a general rule, there are two levels of jurisdiction: a petition for judicial review (means of extraordinary remedy) against the decision of the first instance administrative court may be lodged with the Curia, however, if an appeal can be submitted under the aforementioned conditions, then there may be three levels of jurisdiction.]
The time limit for the submission of an appeal is fifteen days from the time of delivery of the impugned decision. A counter‑appeal shall be lodged at the latest at the second instance court’s hearing, while a cross‑appeal shall be submitted to the second instance court within eight days from the time of service of the appeal. No new legal bases, facts or circumstances that had been unknown to the first and second instance courts may be referred to by the parties in their petition for judicial review.
New facts and evidence may be presented in the appeal if the appellant came into possession of the new fact or the new evidence after the first instance decision was rendered, provided that such new fact or evidence would have been to his benefit had it been considered originally. New facts and evidence may also be presented if they are intended to demonstrate the unlawfulness of the first instance decision.
1.2. As a general rule, a petition for judicial review (means of extraordinary remedy) may be submitted to the Curia against final first instance administrative court decisions. Petitions for judicial review may be heard only by the Curia.
No petition for judicial review may be submitted against decisions establishing a payment obligation to the tax authority or a payment obligation recognised as outstanding public dues enforced as taxes, decisions imposing a financial penalty and decisions in cases of expropriation if the payment obligation established in the administrative decision, the penalty or the amount of compensation does not exceed 1 000 000,- HUF. No petition for judicial review may be lodged against Curia decisions.
The Curia shall decide on the petition for judicial review within one hundred and twenty days from the time of receipt of the petition.
- As regards cases launched after 31 December 2017, the system of judicial remedies in respect of the decisions of administrative and labour courts is as follows:
2.1. If allowed by law, first instance judgements may be appealed by pleading infringement of the law. The appeal shall be submitted – if the law does not provide to the contrary – within fifteen days from the service of the judgment to the court of first instance. If a request for immediate legal protection was filed, the appeal shall be submitted within three days from the receipt thereof. The opposing party of the appellant and the person concerned may submit a counter‑appeal or cross‑appeal within eight days from the service of the appeal.
New facts or new evidence: the rules are the same as the ones applicable to cases started no later than 31 December 2017.
The first instance judgement of an administrative and labour court may be appealed to the High Court of Budapest, while the first instance judgement of the latter may be appealed to the Curia. Under exceptional conditions, the first instance judgement of an administrative and labour court may be appealed directly to the Curia by way of a so‑called “leaping appeal”: if the decision was adopted in the first instance by an administrative and labour court, the parties, in a joint petition attached to their appeal and pleading the infringement of substantive law, may present a motion for the Curia to directly decide on such an appeal. The Curia shall admit the leaping appeal if it is based on a violation of substantive law of fundamental importance in terms of ensuring the uniformity of the courts’ case‑law.
First instance rulings adopted in the proceedings of the second instance court which should be appealed in accordance with the rules of first instance proceedings may be contested by an appeal (the time limits are the same as the ones to be met regarding judgements).
2.2. The Curia continues to be the only judicial forum to deal with petitions for judicial review.
No petition for judicial review may be submitted against any decision that has become final and enforceable at first instance unless the law excludes the possibility of appeal against such decision, if the party did not exercise his right to appeal and the court of second instance, proceeding upon an appeal lodged by the other party, upheld the first instance decision, against the part of a final decision pertaining only to the payment of interests and court costs, deadlines for performance or payment by instalments, against any decision delivered by the Curia, and if it is excluded by law in particularly justified cases.
The petition for judicial review shall be submitted to the court having rendered the first instance decision within thirty days from the service of the final decision through a legal representative. No new legal bases, facts or circumstances that had been unknown to the first and second instance courts may be referred to by the parties in their petition for judicial review.
Admissibility procedure: as a novelty compared to the rules applicable to cases started no later than 31 December 2017, the Curia shall declare the petition for judicial review admissible if the examination of the violation of law affecting the merits of the case is justified owing to: a) ensuring the uniformity or improvement of the courts’ case‑law, b) the special weight or social significance of the legal issue raised, c) the necessity of the proceedings of the Court of Justice of the European Union to deliver a preliminary ruling, or d) any judgement that differs from the published case‑law of the Curia.
5.1. Number of cases and time taken to judge cases (over the last 5 years)
Caseload of the administrative section of the Curia’s Administrative and Labour Department between the years 2013 and 2017
közigazgatási szakág általános = administrative cases
önkormányzati ügyek = cases related to local governments
érkezett = incoming (number of cases)
befejezett = concluded (number of cases)
folyamatban = pending (number of cases)
Caseload of the administrative sections of the administrative and labour courts between the years 2014 and 2018
- félév = 30 June of each year being a turning point regarding the calculation of cases
érkezett = incoming (number of cases)
befejezett = concluded (number of cases)
folyamatban = pending (number of cases)
Pie chart indicating the time needed for the adjudication of administrative cases at the Curia’s Administrative and Labour Department in 2017
0‑3 hó = 0‑3 months (number of cases)
3‑6 hó = 3‑6 months (number of cases)
6‑12 hó = 6‑12 months (number of cases)
1 év felett = more than one year (number of cases)
No statistical figures are available regarding the time taken to judge administrative cases throughout the country.
5.2. Number of administrative judges
The Curia has 20 administrative judges, while there are altogether 149 judges dealing with administrative cases throughout the country.
5.3. Economic and financial data (budget, etc.)
No economic and financial figures are available in respect of administrative courts, since there is currently no separate system of administrative justice in Hungary.