Center for Fundamental Rights

There are no European Standards

There are no European Standards

An Analysis of The Various Measures Available to the EU Member States to Combat the Pandemic

Having considered the Hungarian constitutional framework and the practical steps taken in other EU Member States during the current pandemic, we arrive at the conclusion that in many countries, due to a lack of the requisite constitutional basis, it was impossible to introduce a form of special legal order. As a result, the legislatures of these countries, often using regular procedures and simple majorities, created emergency powers for parts of the executive branch and in several cases administrative bodies, to provide them with the necessary tools to combat the epidemiological crisis. Where there is a lack of constitutional regulation governing emergency situations or where it is an administrative organ that leads the effort to contain the disease, naturally, parliamentary oversight is much diminished compared to the case where a government acts with constitutionally enshrined authority within the framework of a special legal order. In several countries the emergency powers have no time limit; the executive branch or one of its specific organs decides when to call an end to emergency rule, without the involvement of the legislative.

Unlike the practices of many European countries, which are based on rather perfunctory regulation, the Hungarian legal framework governing the state of danger is set out in the Fundamental Law. Emergency powers vested in the government are derived from an act of the National Assembly which was passed with a two thirds majority and can be revoked at any time by it. The National Assembly remains in session for the duration of the state of danger and can use its oversight authority to scrutinize the actions taken by the government.

Looking at the EU Member States, it becomes clear that there isn’t a uniform European practice when it comes to the various types of “special legal order” applicable in the situation created by the pandemic. There aren’t any “standards” when it comes to how emergency powers are granted, regarding their subjects, application or time horizon. Therefore, the criticism levelled at Hungary lacks legal substance, it is political in nature and relies on double standards. Furthermore, these accusations fit well within the conceptual boundaries of the conflict of world views we have observed over the last decade whereby the Hungarian government is subjected to attacks for political and ideological reasons. The real catalyst behind this phenomenon is a bitterness over the governing parties’ two thirds majority in the Hungarian parliament.

Main conclusions:

  • There is no uniform European practice when it comes to special legal orders. As the various countries have distinct historical backgrounds, constitutional frameworks, administrative institutions, their regulations, which deal with special legal circumstances arising from emergencies, differ significantly. As a result, the Hungarian regulation cannot conflict with a “European” practice that de facto does not exist.
  • There is no uniform European constitutional framework for the introduction of extraordinary legal order for dealing with severe epidemics. There is a group of countries which lack constitutional tools for any type of special legal order. In the case of ten countries, epidemics do not constitute grounds for declaring emergencies under their constitutions.
  • Special legal orders are governed, in a very detailed manner, by the Hungarian Fundamental Law. This provides far clearer and firmer legal grounds for Hungary than what is present in countries which do not regulate emergencies in their constitutions or where they are addressed on the level of general constitutional declarations.
  • A large group of EU Member States, have used regular procedures to pass laws requiring only simple majorities to transfer competences away from the legislative to the organs of government.
  • In several countries the government or the parliament itself significantly curtailed the competences of the legislative, and it is often up to an administrative body to terminate the emergency powers. In contrast, the Hungarian National Assembly remains in session and can revoke the Coronavirus Response Act which authorized the emergency powers at any point.
  • Several European countries have no sunset clauses for the emergency powers or the special legal order.

A few examples from Europe:

  • Estonia: the parliament does not confirm the declaration of the state of danger and has no say with regard to its time horizon.
  • Slovakia: as in Estonia, the parliament does not confirm the declaration of the state of danger and nor does it have a say on its duration, as those decisions lie with the Slovakian government.
  • In Germany, the law governing epidemics has been amended to broaden the powers of the Minister of Health, to the extent where he can issue decrees on his own authority.
  • Also in Germany, the law governing epidemics limits fundamental rights without setting a time limit for the restrictions.
  • Sweden curbed public gatherings in a legislation which did not specify a sunset clause for the restrictions.
  • In Poland, the epidemiological emergency declared by the Minister of Health lasts until it is revoked by the Minister.

Detailed analysis

The framework of the special legal order in (most) European countries was established as a result of the organic evolution of historical and constitutional traditions, national characteristics and local administrative institutions, which have also influenced the respective country’s state structures in general. Therefore, we find great contrast between countries when it comes to the respective forms of emergency rule that they introduced in response to the pandemic. With regard to the institution of the special legal order, there are also significant differences between countries where dictatorial or authoritarian regimes were in power during the second part of the 20th century (like in Central-Eastern Europe, Spain, Portugal) on one hand, and countries that avoided such hardship in the last 70 years (Benelux-states, Scandinavian countries) on the other. Further, power is exercised in a different way during emergencies in countries with a presidential or semi-presidential system (i.e. France, Romania or even the United States), than in the majority of European countries, where the head of executive power is the prime minister. In addition, power is distributed in yet another manner in countries with a federal structure (like Germany, Spain, Italy, Belgium), as in these countries, in concert with the federal governments, executive power is also exercised by regional bodies even while the special legal order is in effect. Therefore, the current special legal order (i.e. state of emergency) in Hungary cannot go against “European practice”, as no uniform European practice exists.

During the current pandemic, many countries can’t lean on an adequate constitutional regime. Although, with the exception of two countries (Denmark and Belgium), each European constitution regulates the institution of the special legal order, in most cases it may only be declared during war or an armed conflict, but not in the event of a pandemic. This applies to Austria, Estonia, Greece, the Netherlands, Croatia, Ireland, Poland, Lithuania, Germany and Sweden. In this group of countries, the special rules providing additional powers to governments or specific organs of government in the case of a pandemic are not based upon the highest legal norm, the constitution, but usually on a subordinate piece of legislation, in most cases adopted with a single majority vote.

In contrast to the practises of the aforementioned countries, there is another group of states, where a special legal order (special order, exceptional order, state of emergency, state of danger etc.) is laid down in the constitution for the event of a pandemic. The Hungarian state of danger is based on a constitutional framework; therefore, the Hungarian system has its constitutional guarantees stemming from the highest level of legal hierarchy.

In most countries, the legislature has some decision-making power with regard to the state of danger (in many cases it is an after the fact approval tied to a short time interval, e.g. Romania). However, in some countries, parliaments have no such a power, as it is exercised by the government. In many cases, it is the government or the parliament itself that limits the power of the legislature and provides increased authority for the executive bodies.

  • In Estonia, the parliament does not confirm the declaration of a state of danger (such authorization is required under the Estonian Constitution only in the event of a threat to the constitutional order). Further, it has no say with regard to its time horizon.
  • In Slovakia, the parliamentary confirmation is also unnecessary for the declaration of a state of danger and parliament cannot set a time limit for its duration, as this is a matter for the Slovakian government to decide.
  • In Slovenia legislative decisions have been made by several institutions which did not have the authority to legislate, and the adopted decrees have the power of law.
  • In Germany, the law governing epidemics has been amended to broaden the powers of the Minister of Health, to the extent where he can issue decrees on his own authority.
  • In Poland no special legal order has been introduced, however, the Minister of Health has declared an “epidemiological emergency” in accordance with the Act on Epidemics of 2008.
  • In Ireland, an act passed in connection with the coronavirus epidemic gives the Minister of Health additional powers.
  • The socialist-far-left Spanish government restricted parliamentary scrutiny of government actions and suspended its obligation to answer lawmakers’ questions indefinitely.
  • In Switzerland the federal government has the power to issue decrees without the involvement of the parliament. In addition, the federal government can transfer powers away from the cantons.

In most countries, the legislature has some decision-making power with regard to the state of danger (in many cases it is an after the fact approval tied to a short time interval, e.g. Romania). However, in some countries, parliaments have no such a power, as it is exercised by the government. In many cases, it is the government or the parliament itself that limits the power of the legislature and provides increased authority for the executive bodies.

  • In Estonia, the parliament does not confirm the declaration of a state of danger (such authorization is required under the Estonian Constitution only in the event of a threat to the constitutional order). Further, it has no say with regard to its time horizon.
  • In Slovakia, the parliamentary confirmation is also unnecessary for the declaration of a state of danger and parliament cannot set a time limit for its duration, as this is a matter for the Slovakian government to decide.
  • In Slovenia legislative decisions have been made by several institutions which did not have the authority to legislate, and the adopted decrees have the power of law.
  • In Germany, the law governing epidemics has been amended to broaden the powers of the Minister of Health, to the extent where he can issue decrees on his own authority.
  • In Poland no special legal order has been introduced, however, the Minister of Health has declared an “epidemiological emergency” in accordance with the Act on Epidemics of 2008.
  • In Ireland, an act passed in connection with the coronavirus epidemic gives the Minister of Health additional powers.
  • The socialist-far-left Spanish government restricted parliamentary scrutiny of government actions and suspended its obligation to answer lawmakers’ questions indefinitely.
  • In Switzerland the federal government has the power to issue decrees without the involvement of the parliament. In addition, the federal government can transfer powers away from the cantons.