Hungary, like any other country in the world, entered a new decade in the early 2020s, not only as a new calendar cycle, but also as a new period of significant challenges: facing a new pandemic and its consequences, while the word "pandemic" has become part of our everyday vocabulary. The Covid19 pandemic was caused by the SARS-CoV-2 virus, the first cases of which were detected in December 2019 in the Chinese city of Wuhan. The epidemic was declared a pandemic by the World Health Organization (WHO) on 11 March 2020. Then, in 2021, mutations in the virus led to the emergence and spread of several variants in several countries. In addition to the health crisis, the pandemic has left its mark on everything. The Covid19 pandemic was a huge shock for the Hungarian, European and even global economy. Almost everywhere in the world, states had to step in and put together economic bailout packages and keep them in place during and after each wave. This was no different in Hungary, where a number of state measures were taken to rescue and maintain certain sectors of the economy. This paper analyses one such state measure, mainly from a legal perspective: state intervention in the rules for using public areas. Although state re-regulation of the use of public areas may seem marginal compared to a whole economic rescue package, in fact the idea had a lot of substance (it was one of the pillars of the gradual opening up after the restrictions), as first only food delivery, then shopping and takeaway, then consumption on terraces was allowed before the gradual phasing out of curfew. This measure affected an entire sector, the hospitality industry, while the burden was borne by local governments in the form of lost revenue. At that time, the number of catering establishments[1] in Budapest was 10,764, while the number in the whole country was 50,832. The author himself was actively involved in the application of these rules, as he works for the Terézváros Municipality, so the study also reflects the specialties that have arisen in the course of his daily work in this field.
The concept of a special legal order is not defined in law, so it can be best
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approached by reference to literature: "(...) a special legal order is a state framework for dealing with a social or natural phenomenon that cannot be dealt with in the normal state of functioning of the state and that threatens the people, the state or the constitutional order."[2] In other words, it is a complex concept that encompasses all the cases and options for action which, as a specific part of the legal framework, determine the functioning of the state and its various actors in certain specified periods of emergency. The primary purpose of this legal order is to ensure a swift and effective public response. In the special functioning of the state, which is different from the norm, there is a shift of emphasis in the normal power structure to promote efficiency, and the powers of the executive (government), which can react more quickly, are expanded. This authorisation is necessary because, in the normal legal order, the consequences of an exceptional situation are disproportionate and the public authorities responsible for dealing with them are given special powers which they may exercise, under exceptional procedural conditions, for a limited period. The proclamation of a special legal order, and the exercise of powers other than those normally exercised within it, can only ever be temporary and within constitutional limits. Its direct purpose is to avert the threat to the protected object or its consequences, and its constitutional function is to restore constitutional order. The essence of the special legal order can also be approached in terms of what triggers its application. By their nature, these causes may be extraordinary situations triggered by catastrophic-type hazards (a state of danger is a disaster or a threat of disaster capable of giving rise to a special legal order); or emergency situations triggered by threats of a civil or social nature (formerly: extraordinary situation, state of emergency, preventive security situation, terrorist threat, unexpected attack). Depending on the direction of the triggers, we can speak of a special legal order triggered by an external threat or a special legal order triggered by an internal threat.
At the time of writing this paper, the Fundamental Law distinguishes between three types of special legal order: state of war, state of emergency and state of danger. A state of war may be declared by Parliament, by a two-thirds majority of its Members, in the event of the declaration of a state of war or a threat of war, an external armed attack, an act having an effect equivalent to an external armed attack, or an imminent threat thereof, or the fulfilment of an allied obligation of collective defence. The Parliament may also declare a state of emergency in the event of an act aimed at overthrowing or subverting the constitutional order, or at the exclusive acquisition of power, or in the event of a serious unlawful act that massively endangers the security of life and property. The Government is authorised to declare a state of danger in the event of armed conflict, war or
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humanitarian disaster in a neighbouring country, or in the event of a serious incident threatening the safety of life and property, in particular a natural disaster or industrial accident, and to deal with the consequences thereof. The current division was introduced by the Ninth Amendment to the Fundamental Law of Hungary as of 1 November 2022. It should be noted here that the Ninth Amendment to the Constitution was adopted by the National Assembly on 9 December 2020, originally with an entry into force on 1 July 2023. However, this was changed by the tenth amendment to the Fundamental Law on 24 May 2022 (in view of the Russian Federation's full-scale war against Ukraine on 24 February 2022), so the new rules on the special legal order came into force on 1 November 2022.
Prior to 1 November 2022, the Fundamental Law named and added more colourful cases to the scope of the regulation establishing a special legal order, which allowed us to talk about extraordinary situations, states of emergency, preventive defence situations, terrorist threats, unexpected attacks and states of danger. The National Assembly could have declared an extraordinary situation in the event of a declaration of war or an imminent threat of armed attack by a foreign power (threat of war), or a state of emergency in the event of armed acts aimed at the overthrow of law and order or the exclusive acquisition of power, or serious acts of violence committed with arms or weapons that threatened the safety of life and property on a massive scale. Parliament could have declared a state of preventive defence in the event of a threat of external armed attack or in order to fulfil an alliance obligation, while a state of terrorist emergency would have been declared in the event of a significant and imminent threat of terrorist attack or an actual terrorist attack. The Government was obliged, in the event of an unexpected invasion of the territory of Hungary by external armed groups, to take immediate action with forces commensurate with the attack and prepared for it, in order to avert the attack, to protect the territory of Hungary with the air defence and aviation forces of the country and of the allies, to protect law and order, the safety of life and property, public order and public security, in accordance with the armed defence plan approved by the President of the Republic, until the decision to declare a state of emergency or an extraordinary situation. The regulatory environment for the state of danger was essentially the same before 1 November 2022 as it is today, with no significant changes[3].
Given that this study deals with the state of danger declared due to COVID and its effects and rules on the use of public areas, the focus will be on the state of danger in the above-mentioned cases of special legal order, according to the then applicable state of the Fundamental Law.
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Until the tenth amendment to the Fundamental Law, i.e. 24 May 2022, the state of danger was the only institution among the special legal orders that was not aimed at the armed defence of the state, so it was clearly justified in the light of the COVID epidemic. The main rules for the period of a state of danger were, as in the past, as today, regulated by the Fundamental Law, while the detailed rules were regulated by the Disaster Protection Act, which is a cardinal act. From its adoption until the tenth amendment, the Fundamental Law laid down the following rules in relation to the state of danger in Article 53:
"(1) In the event of a natural disaster or industrial accident threatening the safety of life and property, and in order to avert the consequences thereof, the Government shall declare a state of danger and may introduce extraordinary measures as provided for in a cardinal act.
(2) In the event of a state of danger, the Government may issue a decree suspending the application of certain laws, derogating from statutory provisions, and adopting other extraordinary measures, as provided by a cardinal act.
(3) A decree of the Government pursuant to Paragraph (2) shall remain in force for fifteen days, unless the Government, by virtue of the authorisation of Parliament, extends the period of validity of the decree.
(4) The Government Decree shall be repealed upon the termination of the state of danger."
Under Article 53 of the Fundamental Law, the Government is empowered to declare a state of danger in the event of natural disasters or industrial accidents that threaten the safety of life and property. In the event of a state of danger, the Government may issue a decree suspending the application of certain laws, derogating from legal provisions and taking other exceptional measures, as provided for in a cardinal law. Decrees issued in this way shall remain in force for fifteen days, unless the Government, acting on the authority of Parliament, extends the period of validity of the decree.
The scope of cases defined in the Fundamental Law is defined in more detail in Article 44 of Act CXXVIII of 2011 on disaster management and amending certain related acts (hereinafter: Kat). These could be (a) disasters, natural hazards (e.g. floods, groundwater flooding, snowfall, extreme weather conditions), (b) the consequences of industrial accidents (e.g. radioactive spills and other radiation exposure) and (c) other hazards, in particular human epidemics or threats of epidemics causing mass disease, drinking water or air pollution. These provisions have given substance to the provisions of the Fundamental Law that provide the framework.
The Kat. also specified in detail the extraordinary measures of the Government. Among these, it is worth highlighting that the Government may, to
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the extent and in the area necessary to avert a disaster, introduce emergency measures by decree or authorise their implementation by introducing emergency measures. It was also stipulated that the provisions of the Legislation Act were to be applied to the promulgation of Government decrees in states of danger. However, in the case of urgent need, the Government decree may be promulgated by means of an extraordinary proclamation, i.e. by reading the text of the decree verbatim, by means of public broadcasting, provided that the decree promulgated in this way shall be published in the next issue of the Hungarian Official Journal. The Kat. also mentioned the exceptional rules that may be introduced by Government Decree. Thus, it was possible to lay down provisions derogating from the rules on public finance, to impose a public administrative task falling within the competence of the mayor and the municipal clerk, to introduce provisions derogating from certain provisions of the act on administrative procedure by decree. But it could also impose a contractual obligation to ensure production, supply and service obligations, and place farmers under the supervision of the Hungarian State. The Kat. also dealt with the extraordinary measures that may be taken on the basis of the Government's authorisation by decree. Within this framework, for example, the traffic of road, rail, water and air vehicles could be restricted for a certain period of the day or to a certain area (route), or the public could be temporarily prohibited or restricted from being on the streets or in other public places in the whole or a certain part of the country, but it was possible to order the police to prohibit the holding of events or public meetings in public places in case of prejudice to the interests of defence, or to restrict entry to or stay in a certain area of the country, or to make entry or stay there subject to a permit. The Kat. also regulated quite minor details, such as the rule that the consumption, sale or storage of alcoholic beverages may be prohibited at the site of the rescue work, or that the use of any vehicle, technical equipment or earth-moving machinery suitable for rescue work may be ordered.
The Kat. provided for the application of specific management rules, authorising the appointment of a ministerial commissioner and also stipulating that the management of local disaster management activities is taken over from the mayor by the head of the regional body of the professional disaster management body, upon arrival on the scene.
However, the most significant provision of the Act concerning local governments was that in a state of danger, the duties and powers of the municipal councils, the Budapest and county assemblies were exercised by the mayor, the lord mayor or the president of the county assembly[4]. In this context, it could not take a position on the reorganisation, closure, scope of supply and services of a municipal institution if the service also affects the municipality.
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This situation effectively meant that the role of the municipal council and its committees was temporarily abolished, with the mayor becoming the sole body exercising powers. In practice, this has caused problems for many municipalities, as the municipal system was not prepared for this task, because this type of decision-making mechanism, although it can be very quick and efficient, has also given greater scope for abuse than functioning as a body, even when the bodies responsible for overseeing lawfulness emphasised the need for the exercise of law in good faith, in accordance with the principle of mutual cooperation and in accordance with their social function, as laid down in Act CLXXXIX of 2011 on Local Governments in Hungary (hereinafter: Mötv.). It is also not insignificant that the responsibility for the decision fell on one person, the mayor. Perhaps that is why some municipalities called a meeting of the municipal council even after the declaration of a state of danger and took decisions.
The then decision-making mechanism of the local governments is only tangentially relevant to this paper, so I will only mention that in Terézváros we created a special system called the Decision Preparation Council (DET)[5], or, more specifically, to ensure the full exercise of rights under the previously mentioned Mötv, in which the previous rules were formally retained and applied (for example, proposals were prepared in accordance with the same rules of content and form, local councilors were notified according to the same system), with some specific additions (e.g. on-line participation of councilors) that were warranted by the situation. In legal terms, therefore, the decision was made by the mayor, but only if the decision proposal had previously received the majority support of the local councilors at the DET meeting held online (which, of course, had no legal content under the Mötv. at that time).
The foundations of the guarantee rules in the special legal order must be unshakeable, because the executive is acquiring powers that would be unacceptable under normal circumstances. That is why the guarantee rules are a precondition for this state of affairs. These must be present in multiple ways, as all these guarantees prevent the granting and exercise of exceptional power from becoming an irreversible process. This also provides the limit that we cannot talk about the absolute power of the executive, but only about the executive being "more powerful" than in the normal functioning of the state. It is a guarantee requirement that such special powers should be strictly limited to a specific purpose, temporary and exercised under control. The same guarantee is provided by the fact that Article 52 of the Fundamental Law states that the application of the Fundamental Law may not be suspended in a special legal order (but its amendment is permitted, as has been the case in several cases), nor may the operation of the Constitutional Court be restricted, and the Government is obliged to take all measures to ensure the continued operation of the Consti-
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tutional Court in a special legal order. In a special legal order, the exercise of fundamental rights, with the exception of the fundamental rights laid down in Articles II and III[6] and Paragraphs (2) to (6) of Article XXVIII[7], may be suspended or restricted beyond the limits provided for in Paragraph (3) of Article I.
In the past period, states of danger can be divided into two groups based on the facts indicated as the reason for the declaration: there were states of danger due to COVID and states of danger due to war.
A special legal order was first declared by Government Decree No. 40/2020 (11 March) on the declaration of a state of danger from 15.00 on 11 March 2020 for the entire territory of Hungary to avert the consequences of a human pandemic causing mass disease threatening the safety of life and property, in order to protect the health and life of Hungarian citizens due to the epidemic situation caused by a new type of coronavirus. This special legal order lasted until 18 June 2020, when Government Decree No. 282/2020 (June 17) on the lifting of the state of danger declared on 11 March 2020 lifted the state of danger.
After the seasonal indication, the Government took a new measure with the deterioration of epidemiological indicators and the spread of the COVID epidemic in Hungary, declaring a second state of danger from 4 November 2020. This state of danger lasted until 8 February 2021[8].
Practically without interruption, when the second Covid state of danger was lifted, the Government declared the third state of danger from 8 February 2021, by Government Decree No. 27/2021 (29 January) on the declaration of the state of danger and the entry into force of the state of danger measures. This state of danger was extended by the Government until 22 May 2021[9]. In this period, a significant change took place in the specific governance rules for local governments, as the Government decided to restore their normal functioning[10]. The temporal scope of this decree declaring the state of danger expired on 1 June 2022, when Act I of 2021 on the containment of the corona-virus pandemic expired.
These three COVID states of danger were followed by states of danger due to war, since the institution of a state of danger under the special legal order, as amended above, was also applied afterwards, because the Government declared a new state of danger, now due to "war," with effect from 25 May 2022, by Government Decree No. 180/2022 (24 May) on the declaration of a state of danger and certain rules concerning state of danger in view of the armed conflict and humanitarian disaster in Ukraine and in order to avert the consequences thereof in Hungary. This was followed by Government Decree No. 423/2022 (28 October) on the lifting of the state of danger declared by Government Decree No. 180/2022 (24 May), and Government Decree No. 424/2022 (28 October) on the declaration of a state of danger and certain rules of state of danger in view of the armed conflict or
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humanitarian disaster in Ukraine and in order to avert and manage the consequences thereof in Hungary. In other words, the Government has essentially maintained the special legal order. This is the fifth decree of state of danger since 2020, and the second state of danger due to "war." The Decree, as in force today, maintains the state of danger until 19 May 2025.
Act LXXVIII of 1997 on the formation and protection of the built environment (hereinafter: Étv.[11]) defines public areas as all tracts of land owned by the state or by local governments, that may be used for its intended purpose by the general public, and is registered as such in the land registry[12]. The important elements that emerge from this provision are: (a) the ownership (state or municipal), (b) the type of property (land), and the further indispensable condition (c) registration in the land registry, the latter, of course, with constitutive effect. Without these elements, we cannot talk about public areas. It is worth mentioning that Act C of 2023 on Hungarian Architecture (hereinafter: Méptv.), which has entered into force in the meantime[13], also regulates in a similar manner: "public area means any state or municipality-owned land for public use, with the exception of airspace used for advertising purposes pursuant to the act on the special rules on the limits of neighbouring rights and property rights, which is registered as such in the land registry."[14]
Public areas may be used by anyone according to its intended purpose[15]. From a property management perspective, it should be emphasised that public areas are national assets, which constitute the unmarketable core assets of municipalities, and Act CXCVI of 2011 on National Assets (hereinafter: Nvtv.) applies to their use. It is subject to Paragraph (1) of Article 38 of the Fundamental Law, which states that "The property of the State and of local governments shall be national assets. The management and protection of national assets shall aim at serving the public interest, meeting common needs and preserving natural resources, as well as at taking into account the needs of future generations." In relation to public areas (as an element of national assets), non-marketability means that they cannot be alienated, with the exception of the right of trusteeship, the right to operate them for the exclusive economic activity, the building lease, the right of use based on law and established in favour of bodies legally entitled to use the property in the public interest, and the utility line easement established in favour of a local municipality, they cannot be encumbered, pledged as security or be the subject of shared ownership.
The municipal council may, in its original legislative capacity, lay down[16] by decree the rules governing the use of public areas owned by it and the fees for the use of such areas.
According to Paragraph (6) of Article 32 of the Fundamental Law, the
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property of local governments is public property, which serves the performance of their functions. Pursuant to Point 2 of Paragraph (1) of Section 13 of the Mötv., the maintenance of local roads and their appurtenances, public parks and other public areas is a local government task in the field of municipal management. Paragraph (3) of Section 23 of the Mötv. empowers the district municipalities of the capital to exercise independently, within the limits of the law, all the duties and powers vested in the municipalities which are not assigned by law to the exclusive duties and powers of the metropolitan municipality. Thus, pursuant to Point 2 of Paragraph (5) of Section 23 of the Mötv., they may independently regulate the rules and fees for the use of public areas owned by them. According to Paragraph (1) of Section 5 of the Nvtv., the property owned by a local government may be either core property or business property. According to Paragraph (2) of the same provision, core property is directly used for the exercise of mandatory municipal functions or powers. A subcategory of core property is unmarketable core property, i.e. property that is classified as exclusive municipal property by the Nvtv. or as national property of priority national economic importance by an act or a local government decree[17]. According to Points a)-b) of Paragraph (3) of Section 5 of the Nvtv., local roads and their structures, as well as the areas and parks owned by local government belong to the national property, i.e. the unmarketable core property, which is the exclusive property of local government. This conceptual scope corresponds to the functional definition of public areas under the Étv. on the formation and protection of the built environment.[18]
The Local Government Council of the Curia of Hungary[19] takes as a starting point in its decisions on the use of public areas the principle that public areas are "finite public property," which implies that local government acts as a public authority. In several decisions, the Curia emphasised that the use of public areas is a matter of municipal authority. Municipalities, by virtue of their decree-making powers, act as public authorities and cannot be on the same level as the applicant for use. For this reason, the use of public areas that are finite public assets for other than their intended purpose, such as commercial use, is decided by the municipality only as a public authority and not as the owner. [Point [20] of Köf.5010/2020/6.]. This was reaffirmed in a decision for the unified interpretation of the law: a legal relationship aimed at the use of public areas is governed by public law. Legal disputes arising from a legal relationship for the use of public areas fall within the jurisdiction of the courts in administrative matters[20].
In interpreting the Constitutional Court's decisions, the Curia explained, among other things, that local governments do not have unlimited freedom in the choice of the applicable legal relationship. It may use elements of public or civil law, but each of them must be understood in its own place and context, i.e. embedded in the underly-
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ing administrative legal relationship. Rules governed by private law are primarily of importance as background law for the administrative contractual relationship[21].
While anyone is free to use public areas, permanent individual use is only allowed within limits and in a regulated manner. The exercise of additional or, within certain limits, exclusive rights may give rise to a payment obligation. Local regulations protect the community interest first and foremost, to ensure equal access for all as far as possible. In comparison, a right of exclusive use, i.e. the temporary or regular occupation of public areas, may be exercised, for example for commercial purposes.
Pursuant to Point 2 of Paragraph (5) of Section 23 of the Mötv., municipalities may independently regulate the rules and fees for the use of public areas owned by them. According to the Constitutional Court, "[the] fee for the use of public areas is the price of the permission for the trader to use the public area for his/her business activities, i.e. to have access to customers in public areas. The acquisition of a fee-based permit is one of the costs of doing business. The permit holder is not buying a consideration that is not of public authority but of an economic nature from the municipality. This is the acquisition of the right to use public areas for private purposes."[22]
Municipalities generally differentiate the fees for the use of public areas according to the type of use, the duration of use, the size of the area occupied and its location. Discount or exemption from the fee for the use of public areas is a separate category. It is worth mentioning here the decision of the Constitutional Court that a regulation which grants fee reductions or exemptions to certain groups of entrepreneurs in order to promote local interests cannot be considered unconstitutional[23].
Fees for the use of public areas are, of course, a significant source of revenue for the budget of a municipality, depending on its geographical location, the transport facilities and the accessibility of the area. This is the case even if, for example, the central legislator interfered with the autonomy of municipalities and established a cap[24] for the fee for the use of public areas for filming purposes by means of Paragraph (3) of Section 34 of Act II of 2004 on Cinematography.
Local Government Decree No. 5/2020 (27 February) of the Municipal Council of the Local Government of Terézváros, District VI of Budapest, on the use and order of public areas owned by the Terézváros Local Government[25] (hereinafter: Ör.) was also adopted according to the principles of Chapter 3. The Ör. divides the public areas of the district into 3 zones: I (priority), II (normal) and III (special). The fee for the use of public areas should be determined by multiplying the zone, the use function (e.g. retail, catering, advertis-
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ing) and the area and duration of the use, and other criteria may be taken into account[26]. However, the Ör. also provides for cases where no consent is required for the use of public areas (e.g. for the designation and securing of running race routes, the establishment and maintenance of taxi ranks, the establishment and maintenance of bicycle storage facilities and bicycle racks) and for cases where no consent may be given (e.g. for the sale of products that cannot be sold in public areas, for the commercial repair of vehicles, for the storage of inoperable vehicles). The Ör. also contains requirements based on local specificities regarding the siting of catering outlets and the siting of micromobility facilities[27]. Of course, there are also a number of other mandatory provisions in the decree, but these are not relevant to this paper.
To illustrate the economic weight of the use of public areas: in the planning of the 1015 budget for the district, in relation to the total revenue of the municipality, which is planned to be approximately HUF 33 billion, fees from the ordinary use of public areas (i.e. terraces of catering establishments, construction and installation works, cultural and sporting events) amount to HUF 500 million, i.e. such significant revenue is included under the single general ledger heading "other local government revenue." In a broader sense, the use of public areas for parking may also be included here, although as a separate category, with a projected net revenue of over HUF 1 billion in 2025. The magnitude of these figures is also reflected in the fact that Terézváros is the second smallest of Budapest's districts (2.38 km[2]) and has a total population of 36,000, which makes it 4th on the list of Budapest districts.
In Hungary, during the COVID-19 pandemic, the government took several measures to support the economy, including exempting catering establishments that wanted to provide their services in public areas (such as terraces) from the obligation to pay fees from 1 April 2020[28]. It is important to note that the territorial scope of this decree divided the country into two parts: its provisions covered the territory of Hungary, with the exception of Budapest[29]. So the country was allowed to open (shops were allowed to stay open, although the elderly, over 65s, could only shop in the morning), beaches, lidos and outdoor spas were allowed to stay open and be visited, as were open-air museums and zoos, and services were available to anyone. For the capital city, a separate regulation was created, effective from 18 May 1010, by Government Decree No. 211/2020 (16 May) on the protection measures for the capital city. It also stipulated that catering establishment operators did not have to pay fees for the use of public areas until 1 September 1010 for catering establishment terraces in public areas. Act LVIII of 1010 on the transitional rules and epi-demiological preparedness related to
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the cessation of the state of danger laid down transitional rules on certain payment obligations related to the use or occupation of public areas, so that catering establishment operators were not required to pay fees for the use of public areas for their terraces in public areas in order to reduce the spread of the human epidemic in the administrative territory of Budapest from 18 May 2020 until 1 September 2020, and in the rest of Hungary from 4 May 2020 until 1 September 2020, and that no such fees may be claimed later.
The legislator's intention to assist appeared in the second state of danger as well, since the Government Decree No. 176/2021 (15 April) Until 31 December 2021, the user of a catering business directly connected to the public area is entitled to use the public area free of charge without paying a contribution for the use of the public area. The legislator narrowed the scope of subjects and also applied a much more precise definition than in the first period of state of danger, since the exemption from payment was not generally granted, but only if the business was directly connected to the public area. Detailed rules were also provided for: public areas were allowed to be used within the width of the building of the catering business adjacent to the public area. Anyone who had a permit or contract to use public areas could use the public area to the extent permitted by the permit or contract. It was also regulated that catering establishments in the same building could, unless otherwise agreed, exercise the same degree of control per catering establishment; in the case of an area closed to road traffic (square or pedestrian street), catering establishments opposite could exercise the same control up to the halfway line of the area. The legislator partially re-regulated this issue with Act XCIX of 2021 on transitional rules in connection with the state of danger, promulgated on 28 June 2021, to the extent that users are entitled to use public areas free of charge until 30 September 2022. It was stated that the user is responsible for ensuring unobstructed road and pedestrian traffic in the space of the public area intended for traffic, in accordance with the local government regulations in force on 31 December 2020, and that the width of the pavement must not be less than 1.50 metres, and that structures for public use are accessible to wheelchairs and pushchairs. Failure to comply with these could result in a fine by the police or even closure. The rules on opening hours were also clarified: the rules in force on 31 December 2020 were applicable, with the possibility of establishing rules that would ensure more favourable operating conditions for catering businesses.
In districts and cities with dense urban fabric, it was observed that local governments were more permissive in providing the opportunity of using public areas, allowing catering establishments to set up terraces in places where they had not been allowed to do so before, because the area served other purposes. A typical example was the terrace built on the parking spaces (in the parking lane).
In Terézváros, due to the specific nature of the built environment (con-
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dominiums, typically with narrow streets and narrow sidewalks), there have been several cases of terraces. The municipality did this to help the opening up, the hospitality sector and the revival of personal contacts, but only if there have been no safety concerns. Safety was therefore a priority (as it put the person sitting on the terrace literally at arm's length from the traffic). In addition, of course, this measure also created controversy, since the already scarce and (mainly due to the circumstances analysed in detail in the next section) crowded parking spaces have been temporarily eliminated. Of course, the outdoor activities also created a noise impact on the working terraces, which was sometimes more difficult for the surrounding apartment buildings - sometimes rightly so.
On the grounds that maintaining a safe distance between people is one of the most important means of combating the coronavirus epidemic, and that this is not or only to a limited extent possible on crowded public transport lines, the payment of the waiting fee was abolished by Government Decree No. 87/2020 (5 April) on different rules applicable during the state of danger, therefore, no waiting charges were payable for the use of local public roads, private roads, squares, parks and other public areas not closed to public traffic and owned by the local government, as well as national roads and private roads, squares, parks and other public areas not closed to public traffic and owned by the state, for the use of waiting areas by vehicles for waiting purposes. This provision was in force from the end of the first COVID state of danger on 18 June 2020 until 1 July 2020, in order to guarantee the rule of law in terms of required preparation time.[30] The suspension of parking fees was the subject of active public debate, as it had a number of secondary effects. The basic idea that this would help the shift from public transport (because it does not adequately ensure the maintenance of safe distances between people) was countered by the negative economic impact that the non-payment of parking fees had on the beneficiaries, i.e. the municipalities, at a time when the pandemic had put a number of other unforeseen and unmanageable economic burdens on them. In Terézváros alone, during the first wave, this government protection measure has meant a loss of revenue of around HUF 400 million.
A further negative effect was the increase in traffic, which was also an indirect legislative objective, and the resulting congestion and parking difficulties (obviously, parking spaces filled up quickly, with less vehicle turnover per parking space). It can be seen that, from a market perspective, the focus of parking also shifted to public areas, because the exemption from fees also significantly reduced the traffic in paying car parks and multi-storey parking garages, which is economically understandable. In the context of the increase in traffic, it should be noted that curfews were in place in the country during this period. As a criticism of the decision and its justification, which did
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not come up in public debate, I would like to say that this provision was location specific, it only made sense within the municipality, since - following this logical reasoning - it did not address commuters between the 80 municipalities of the Budapest agglomeration and the cities, since people travelled not only within municipalities by public transport, but also between municipalities, which was a separate problem for the capital and the big cities. In my opinion, the argument put forward as a justification would have been clearly valid if the obligation to pay tolls had also been suspended.
Upon the second COVID wave and the second declaration of a state of danger, the Government reintroduced free parking in public areas with Section 8 of Government Decree No. 479/2020 (3 November) on additional protection measures to be applied during the state of danger, which was in force until 25 May 2021. For the sake of completeness, it should also be noted that the Government not only intervened in the regulation of parking in public areas, but also in the market, when it made parking free of charge in residential areas and commercial parking facilities (e.g. in multi-storey car parks) from 7 p.m. to 7 a.m. by Government Decree No. 512/2020 (21 November) on measures to facilitate parking during the state of danger[31]. On the same day, a government decision[32] was also adopted to allow free use of the parking spaces in public areas of public bodies and state-owned companies between 7 p.m. and 7 a.m. In the government decision, the government asked municipalities to decide whether to open their parking lots or those of companies owned by them to the public and to inform the public within 48 hours of their decision. No other central decision on parking was taken after that.
It is difficult to conclude on the state of danger when, at the time of writing this paper, the special legal order is still in force in Hungary - as far as we know[33] - until 18 May 2025. In the foregoing I have attempted, within the context of the rules of special legal order, to draw attention to the rules and circumstances of a very small detail of the economic rescue package offered in the COVID state of danger and to highlight how this seemingly simple government measure, i.e. the introduction of free use of public areas for catering establishments and parking, has shaped the daily life of municipalities. ■
NOTES
[1] Source: https://www.ksh.hu/docs/hun/xstadat/xstadat_evkozi/e_oga013.html
[2] Csink Lóránt: Mikor legyen a jogrend különleges? [When should the legal order be special?] - Iustum Aequum Salutare, 2017/4. p. 8.
[3] The legal basis for declaring a state of danger was amended by the Ninth Amendment to the Fundamental Law: the Government may declare a state of danger "in the event of a serious incident threatening the safety of life and property, in particular in the event of an elementary disaster or industrial accident, and in order to avert the consequences thereof." The use of "in particular" has turned an enumerative definition into an illustrative list of exceptional situations that constitute a state of danger.
[4] This rule could not be applied from 15 June 2021.
[5] As an organisation without legal capacity, of course.
[6] Article II: "Human dignity shall be inviolable. Every human being shall have the right to life and human dig-
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nity; the life of the foetus shall be protected from the moment of conception." Article III "(1) No one shall be subject to torture, inhuman or degrading treatment or punishment, or held in servitude. Trafficking in human beings shall be prohibited. (2) It shall be prohibited to perform medical or scientific experiment on human beings without their informed and voluntary consent. (3) Practices aimed at eugenics and the use of the human body or its parts for financial gain, as well as human cloning, shall be prohibited."
[7] rules relating to the presumption of innocence
[8] See Government Decree No. 478/2020 (3 November) on the declaration of a state of danger and Government Decree No. 26/2021 (29 January) on the lifting of the state of danger declared by Government Decree No. 478/2020 (3 November) on the declaration of a state of danger.
[9] See Government Decree No. 271/2021 (21 May) on the renewal of the extraordinary measures relating to the state of danger declared on 8 February 2021.
[10] According to Section 1 of Government Decree No. 307/2021 (5 June) on the different application of certain provisions of Act CXXVIII of 2011 on disaster management and amending certain related acts, "[The Government,] notwithstanding Paragraph (4) of Section 46 of Act CXXVIII of 2011 on disaster management and amending certain related acts, shall exercise the duties and powers of the municipal council, the capital's assembly and county assemblies and their committees."
[11] Repealed by the Méptv. from 1 October 2024
[12] Point 13 of Section 2 of the Étv.
[13] phased entry into force: 30 December 2023, 1 October 2024, 1 January 2026, 1 July 2027
[14] Point 73 of Section 16 of the Méptv.
[15] Paragraph (5) of Section 54 of the Étv.
[16] Paragraph (2) of Article 32 of the Fundamental Law: "Acting within their functions, local governments shall adopt local government decrees to regulate local social relations not regulated by an Act or on the basis of authorisation by an Act."
[17] Paragraph (1) of Section 5 of the Nvtv.
[18] Points [16]-[17] of Decision No. Köf.5.010/2020/6
[19] On the case law of the Local Government Council of the Curia of Hungary, see Péter Tilk: A Kúria Önkormányzati Tanácsa helyi jogalkotással kapcsolatos elvárásai. [The expectations of the Local Government Council of the Curia of Hungary in relation to local legislation.] Kodifikátor Alapítvány, 2014.
[20] Decision No. 1/2022 of the Curia on the uniform interpretation of administrative and civil law: on determining whether a legal relationship concerning the use of public areas is governed by public or private law and on determining the court having jurisdiction in disputes concerning such a relationship
[21] Point [50] of Köf.5.033/2017/4.
[22] Point [38] of Decision No. 7/2015 (19 March) of the Constitutional Court
[23] Point [31] of Decision No. 8/2019 (22 March) of the Constitutional Court
[24] Generally at a much lower amount than the municipalities would otherwise have applied in the past.
[25] Source: www.terezvaros.hu/Önkormányzat/rendeletek/Közterület, városüzemeltetés
[26] Sections 17-18 of the Ör.
[27] Sections 5 and 5/A of the Ör.
[28] Paragraph (3) of Section 5 of Government Decree No. 168/2020 (30 April) on protection measures
[29] By Government Decree No. 169/2020 (30 April) on the maintenance of the curfew in Budapest and Pest County, the Government maintained the curfew until 18 May 2020.
[30] See Fekete Kristóf Benedek: Parkolás veszélyhelyzetben. [Parking during a state of danger] Jura 2020/4, p. 113.
[31] This provision was in force until 24 May 2021.
[32] Government Decision No. 1839/2020 (21 November) on measures to facilitate parking during the state of danger.
[33] Paragraph (1) of Section 2 of Act XLII of 2022 on the preparation and management of the consequences in Hungary of armed conflict or humanitarian disaster in a neighbouring country
Lábjegyzetek:
[1] The Author is municipal clerk, Mayor's Office of Terézváros, District VI of Budapest honorary associate professor, Department of Constitutional Law, Faculty of Law, University of Pécs.
Visszaugrás
