ENVIRONMENTAL ENFORCEMENT IN HUNGARY - TODAY AND TOMORROW

 

PROFESSOR DR. GYULA BANDI[1]

 

Secretary General of the Hungarian Lawyers Association

 

                       

            SUMMARY    

 

            At the time of the present Conference, nearly two years has passed since the European Council of the European Community released the declaration The Environmental Imperative signed in Dublin in 1990. The declaration underlined the following among global issues:

 

            "The environmental situation in Central and Eastern Europe presents special challenges. We endorse the agreement reached in Dublin on 16 June 1990 between the Environment Ministers of the Community and those of Central and Eastern Europe on the steps to be taken to improve the environment in Europe as a whole and in Central and Eastern Europe in particular. Remedial measures must be taken by these countries to clear up problems which have developed through years of neglect and to ensure that their future economic development is sustainable." (1)

 

            The above statement is still in force, and we in Central and Eastern Europe (CEE) are not much closer to the fulfilment of overall or even partial environmental requirements than two years ago. If we examine the state of environment in today's Hungary then - being a bit cynical - the slightly positive changes are more or less due to the economic difficulties effecting a number of polluting facilities. (E.g. the use of chemicals in agriculture is much less than ever before because of the great rise of chemical prices due to the cancellation of state subsidies to the chemical industry.) The general political, economic, technical, organisational and legal background of Hungary is not very favourable to environmental protection interests. Before going into the specifics of environmental enforcement in Hungary, it is important to examine some of these background issues in order to get a more complex view of the present situation. The following is a list of advantages and disadvantages to environmental protection of these background issues.

 

1             INTRODUCTION

 

1.1       Policy Issues (Past and Present)

 

Advantages

1.1.1    In developing a multi-party system and a rule of law, there is a better chance for environmental interests to be emphasised. Some political parties, movements (and even the church) can incorporate environmental demands in their campaigns, which may provide a mutual benefit to both the movements and parties and the environment.

1.1.2 The program of the new Government (2) was adopted in summer 1990. Although it focuses primarily on economic issues, Chapter V is dedicated to environmental protection requirements. Based on this Program, the Environmental Ministry in the same year made a detailed plan of action, the majority of which has not yet been fulfilled.

1.1.3 Our international commitments are more and more favourable for the environment. For example the convention on transboundary impact assessment (Espoo, February 1991) and the association agreement with the European Communities gives priority to environmental interests.

 

Disadvantages

1.1.4 The relationship between economic and environmental priorities in policy-making even today puts a greater emphasis on economic interests than environmental ones.

1.1.5 A concrete environmental policy and strategy - going beyond a set of mere statements - is missing both in national or regional policy and also on the party-policy level.

1.1.6 Due to the preceding point environmental protection in the regulatory arena has always been - and in most cases still it is - mere "show-business". It declares a concern for protection rather than creating a real set of political, economic and legal requirements. The environment became a top issue in international co-operation, so the government had to respond to this (3).

1.1.7 The transition process has resulted in numerous political, social and economic problems especially related to social security and unemployment concerns. These run against the interests of environmental protection.

 

1.2 Economic Development

 

Advantages

1.2.1 For the most part, the state is no longer both the potential polluter and the responsible regulatory and controlling administration. Thus there now is a greater chance for enforcing environmental requirements.

1.2.2 The market economy and consumer policy together may have a self-monitoring and regulating effect (E.g. the prices of raw materials and energy).

1.2.3 There is a greater probability that an environmental - or energy saving, recycling etc. - industry and services shall be developed as a response to new environmental regulations.

1.2.4 Foreign trading relations have a big impact on environmental protection. Western product criteria and environmental requirements may encourage Hungarian industry to use for example EC standards though they are not incorporated into the Hungarian regulatory system.

1.2.5 There is now a chance to develop market economy and environmental protection in harmony, which has never existed before.

 

Disadvantages

1.2.6 There is a tendency to connect stricter environmental regulations with a later stage of economic development - when "we can afford it".

1.2.7 A market economy is not an absolute self-controlling mechanism in the interests of environmental protection. The effect of a market economy is very ambiguous and partly may be favourable for environmental protection interests (e.g., shutting down polluting industries or developing market incentives), but can also be damaging to the environment (e.g., increased emission also occur together with growing production or the incapability of former state industries to clean up polluted sites).

1.2.8 The necessary economic incentives for environmental protection are missing from Hungarian economy, as well as an understanding of the role of economic management in environmental protection. To this we must also add the new prospects in privatisation, joint ventures, concession licences and compensation for past nationalisation, all representing primary parts of the economic program, but all without reference to environmental impacts.

1.2.9 The involvement of foreign money is directly connected to the new phenomena listed above, especially privatisation. In order to attract foreign money the economic management is willing to ease environmental criteria.

1.2.10 It is clear that our own resources are not enough for both pollution prevention and remediation, so the setting of priorities is an essential requirement at this level also.

 

1.3 Technological Challenges

 

Advantages

1.3.1 The development of foreign trade and the involvement of foreign capital and technology provide a better chance for the financing and use of cleaner technologies.

1.3.2 A great portion of the present technological infrastructure must be modernised in order to make the economy competitive. This may mean again the use of cleaner technologies.

1.3.3 The relatively inefficient monitoring capacity is more and more improved due to foreign assistance projects (e.g., PHARE).

 

Disadvantages

1.3.4 Hungary’s present technological resources are not sufficient enough to meet the requirements of environmental protection, and will not be changed substantially in the near term.

1.3.5 The monitoring and information systems in Hungary are less developed - a good example is the difficulty of our telecommunication system.

1.3.6 The training of special environmental experts is developing. This is still only on the post-graduate rather than the graduate level, so it is less for general environmental skills than for specific ones.

 

1.4 Environmental Legal Issues in General

 

Advantages

1.4.1 The legal system needs overall restructuring. This does not simply mean several amendments, but rather means to rebuild the old system from the ground up. There is a great chance to incorporate environmental interests while developing the whole system.

1.4.2 The amended Constitution contains the right to environment as an obligation of the state.

1.4.3 The creation of a rule of Law State means a broader sphere of judicial review over legal regulations (Constitutional Court), and administrative decisions and a greater role of the judiciary in general. All of these serve to guarantee the constitutional rights.

1.4.4 There is a separate ministry for environmental protection with a system of national and regional offices. This dates back to 1988, but was substantially restructured in 1990. It is now called Ministry of Environmental Protection and Regional Policy.

1.4.5 The creation of the local (self-) government system offers a greater possibility for the protection of local environmental interests and also can serve as one representative of the public interest.

1.4.6 There are a number of regulations in the present legal system (discussed later) which could serve the interests of environmental protection without any or with only some minor adjustments.

 

Disadvantages

1.4.7 In spite of the difficulties in developing clean technologies, these technical solutions had always been emphasised instead of regulation and enforcement, as the latter would have needed direct responsibility from the state organs.

1.4.8 Due to the total reshaping of the legal system its internal harmony is and will be missing for a longer period.

1.4.9 The creation of a rule of Law State results in a number of uncertainties as to the relationship, organisational structure, and division of power of the different actors (4).

1.4.10 Some major environmental elements are governed by central administrative agencies other than the environment ministry without the necessary co-ordination. In addition, the environment ministry has a number of other tasks that are sometimes in contradiction with its environmental role. Further, the basic goal of separating the management/use and the protection of a given resource is not always met.

1.4.11 Additional difficulties have developed with the division of public administration tasks between the central, state, and local (or self-) governments.

 

 

2 OPTIONS OF ENVIRONMENTAL ENFORCEMENT - PAST AND PRESENT

 

2.1 Environmental Enforcement Policy

 

            The first question is to find out whether anything like an enforcement policy or strategy does exist or not in Hungary as this policy should govern the would-be enforcement activities. If we examine the 16 years, which since the general act on environmental protection (5) was passed, it is quite difficult to prove the existence of such a policy. The reason lies in the fact that the manager of the polluting activity and the organ responsible for environmental protection in at least 95% of the cases was the same - the state. No wonder why there was little emphasis on enforcing environmental regulations. Today the situation is a bit changed, but more than 80% of the Hungarian economy is still in state ownership, and there are also a number of other competing interests, as was shown in the first chapter.

            The conclusion is that there was and there is no general environmental enforcement policy in Hungary. Nevertheless there have to some extent been some attempts towards such a policy.

The first example is the strategy to save Lake Balaton. The establishment of this strategy dates back to the end of the 1970s, but was mainly active in the beginning of the 1980s. The poor water quality of the Balaton area proved to be dramatic, due primarily to three main reasons: the artificial drying out of the natural filter wetland area at the mouth of the main river flow; the extensive construction of holiday houses without sewage treatment facilities; and also the widespread use of chemicals in agricultural production. The steps taken to restore the lake include the restoration of the original wetland, the construction of sewage treatment plants, and the establishment of limits on building and farming. The results demonstrated the effectiveness of a combined environmental enforcement policy. The Balaton project has been the only example of such a complex and successful project up till now (6).

            Second, in the mid 1980s the (so-called) environmental policy program selected three major areas of future activity based on the priorities of environmental problems: air pollution, water pollution and hazardous wastes. These priorities, however, did not really serve as the basis of an enforcement program due to the general lack of willingness. A good example is the case of investment in one of the biggest hazardous waste deposit sites in Hungary - at Aszód. Here the new 1988 taxation system - which did not differentiate according the purpose of an investment - increased the costs of the waste site by several million forints, causing a lack of necessary financial resources for the project. The harmful taxation system was changed only two years later.

            A last example is the obligation of the larger towns like Budapest to develop their own emergency plans and standards for air pollution. These plans were not complex enough - Budapest would like to adopt a new and complex plan only this year. In addition, the emission (ambient) standards were set so high that even pollution exceeding the public health standards would not be deemed sufficient enough to warrant emergency action.

 

2.2 The System of legal Measures - Regulation

 

            One of the most important questions of enforcement is whether the legal instruments provide a sufficient basis for enforcement actions. The relevant legal measures can be observed in two groups. The first is the general substantive law, containing all the instruments and measures giving rise to an enforcement activity or compliance, and the second represents the special rules for the different environmental element (7). The Act No.II.of 1976 on the protection of human environment lists six environmental elements: land, water, air, flora and fauna, landscape, and settlement environment, where the latter covers all those possibly harmful activities (from waste to noise) which may have an impact on the given residential, recreational, industrial, community etc. environment. As the enforcement tools are common to all the environmental elements and are in the first target group, the different environmental elements are out of our interest now.

            The environmental regulations will set the framework within which the different elements of environmental enforcement - described in point 3 - may find their role and their relationship to each other and to the given environmental policy. The basic concept of environmental regulation appears in the right to environment, therefore the following evaluation will also be started with this. The legislation means the higher level of regulation and the executive rules are manifested in standard setting - meaning the high level of technical rules - and in the administrative regulation. This latter is discussed under the next part in connection with the other elements of administrative law.

 

2.2.1 Right to Environment

 

            The best reflection of a basic philosophy of how to regulate environmental protection (8) is the regulation of the right to environment (but of course only if we take human rights issues seriously). The 1976 Act granted to every citizen the right to live in an environment worthy of man (9). However, this right has not been interpreted in practice by a court.

            The Constitution was amended in 1989 with the assumption that constitutional rights in the future would serve as the basis of legal action. This Constitution regulated the right to environment in two relatively different ways.

            Article 18 grants a separate right: "The Hungarian Republic recognises and enforces the right to a healthy environment for everyone."

            Article 70/D treats this right as a tool for ensuring the highest possible level of physical and mental health. In addition to protecting the manmade and natural environment, this right is ensured by organising a labour safety system, public health institutions and medical care.

            The first of the above mentioned two articles is a direct adoption of a right to environment, not only for the citizens but also for everyone. This article clearly expresses that the State is responsible for ensuring the implementation of this right, even within an international aspect, as it is the only way to ensure the rights for "everyone". The Government, however, has turned to the Constitutional Court to ask for an interpretation of this article to determine whether it really is a primary obligation of the State.

 

2.2.2 Legislation

 

            The tasks of rulemaking in environmental protection, as in other continental legal systems, are divided among the parliament, the government and local governments. In response to the last 45 years, the new Parliament wishes to regulate all the important questions of the legal system itself. This is a great burden if we look at the necessity of reconstructing the whole legal system (see 4.1, above.) This legislative burden can only be alleviated by setting priorities and regulating according to these priorities. Unfortunately, because of a number of reasons (see, e.g., 1.7. 2.5. and 4.7-4.11, above), environmental regulation is only a priority on paper. The ministry program mentioned above listed a wide range of topics to be regulated in 1991, including environmental impact assessment and the general act on the protection of environment. However, in 1990 and 1991 there has not been any major environmental regulatory steps.

            In environmental legislation we are now in a very beneficial situation, namely trying to formulate an overall and comprehensive environmental law that covers the main legal measures and therefore also serves as a basic document for environmental enforcement according to the newest development patterns in the Western region (10).  If one wishes to outline the major characteristics of contemporary environmental law or environmental legal process, some important prerequisites can be identified:

 

            - There is a tendency towards comprehensive general acts on environmental protection, covering the major legal instruments, the outline of the organisational structure, and the spheres of authorities;

            - The philosophy for regulation beside the respect of the peoples' right to a decent environment is departing from the ordinary anthropocentric concept towards the rights of future generations or even the necessity to protect biodiversity;

            - The environmental protection is the major task of the state, which means the state together with the provincial or local governments has to generate a legal, economic, administrative and cultural surrounding within which environmental requirements can prosper;

            - Environmental protection or pollution control as it is called other places must be integrated, with regulations of different environmental elements governed by a general act;

            - The main principles of environmental regulation are prevention, co-operation and the polluter pays principle (i.e., the polluter is responsible and liable);

            - Environmental and economic management measures must also be integrated - with environmental conditions built into economic strategies and economic incentives built into environmental measures -instead of running parallel and separate from each other;

            - The environmental criteria are severe, but with a general environmental policy the phasing in of the different standards and measures can provide a chance for preparation;

            - There is a great emphasis on public participation and all necessary preconditions, ranging from access to information to direct rights of participation in different regulatory and decision-making processes.

            Most of the countries in CEE are drafting their environmental regulations with this kind of concept in the mind. There are two major types of environmental legislation in the region: framework legislation, determining only the fundamental rules and giving room for further legislation; and detailed legislation, covering as much of the integrated pollution control measures as possible. Both types have benefits and disadvantages and it is up to a country's legal traditions and the present legislative trend to determine which is preferable (11).

            The first version of the Hungarian draft, commissioned by the Parliamentary Committee on Environmental Protection, was submitted to the Committee in January 1992.  The draft covers most of the general legal measures, from permit systems through economic measures to criminal offences and among others also has a separate section on privatisation. The draft begins with the general and conceptual questions, then addresses the management of state and local government environmental obligations, together with the funds supporting them, and also addresses the criteria for legal regulation from an environmental protection point of view. The public participation provisions require a relatively detailed regulation. Among the means of regulating environmental needs, obligations, fees, permit-systems and incentives are mentioned. The special procedures of environmental protection administration cover among others environmental impact assessment and procedures to be followed in the case of bankruptcy. The detailed liability provisions address criminal liability, compensation of damages, insurance issues and environmental fines.

            Meanwhile, in April 1992 the Ministry of Environmental Protection and Regional Policy also completed a draft act, much shorter and less detailed than the previous one.  This draft is not a comprehensive piece of legislation, as it refers in a great number of cases to other legislation that would be developed in the future. The draft does not depart greatly from the existing legal provisions. Among others, it gives fewer guarantees for public participation and fails to address the possible economic incentives.

            When speaking about the situation of environmental enforcement in our country and also that of the region, the present status and future possibilities of drafting and adopting environmental laws is very important. This legislative process determines in the long run the place of environmental regulations within the legal system, as well as those measures to be used in enforcing the regulations. Therefore in the present situation, the enforcement policy depends strictly upon the state of environmental regulation in general and the state of adopting a comprehensive environmental protection act in particular.

 

2.2.3 Standard Setting

 

            Situated between legislation and the public administration regulation, standard setting presents a challenge of translating environmental requirements into a numeric form in order to make enforcement programs easier. The efficiency of the standards always strictly relies upon the main purpose of standard setting and the monitoring capacity of enforcement administration. Standards can serve a role in prevention or serve as the basis for liability or sanctions. In the past and today also, the preventive aspect of standard setting has not really been the most important, except in some cases such as in the new air-pollution regulation the new installations must ask for pollution standards before entering into operation.

            The standards in air pollution and in theory in water protection are based on ambient (emission) quality standards. From these, the emission standards are formulated. The emission standards are generally territorial ones but may also be established on a factory-specific basis. Setting the standards is usually the responsibility of government ministries. In air quality, the ambient standards are set by the Ministry of Public Welfare and the emission standards are set by the Ministry of Environmental Protection and Regional Policy, with an opportunity for the middle level (county or capitol) local governments to establish more stringent standards. Typically, the size of a country shall effect the division of standard setting duties. The air quality standards in Hungary divide the country into three levels of protection.

            In practice the violation of national or regional standards does not result in the limitation or stopping of a polluting activity. Instead the national and regional standards serve as a basis for fines. In the 1970s and 1980s, it was even difficult to make the judicial practice believe that a standard is not a general borderline between lawful and unlawful activity and only a way for administration to measure and prove pollution. On the other hand, if the standards are not really used as preventive measures there impact is not really great.

 

2.3 The System of Legal Measures - Spheres of Law

 

            When discussing the system of legal measures, the best option is to set up those well-known groups of legal regulations, where the main difference lies in the role of the state in enforcing the rules and the essence - balance of rights and obligations - of the legally characterised relationship. These groups are:

            - Public administration measures, covering also the economic management,

            - Civil law or private law,

            - And criminal law as the most stringent tool.

 

2.3.1 Public Administration, Administrative Law

 

            In Hungarian environmental law, as in other legal systems, public administration is the most important in enforcement. Administrative law controls the everyday activity of the state administration, covering both the central and local governments. A new but increasingly important function of the state is to maintain the balance between environment and society.

            The public administration measures in Hungary can either directly or indirectly affect conduct. In a direct fashion, it can force a party to carry out an obligation as regulated by law or decided in an administrative decision. In an indirect fashion, it can influence the independent decision of a party on future activity.

 

            1.The direct measures can be:

 

            - Regulation, here as a secondary regulation implementing the legislation with the authorisation of the Parliament. This can be a general authorisation to the government and public administration for adopting a regulation, or a special authorisation to explain and enforce the parliamentary level regulatory provisions. Different from this is how to regulate primarily and also in a secondary way issues of territorial and local interest within the local (self) governments.

            - The basic preventive measure in environmental protection is the permit or licence, hopefully combined in the future with the requirements of environmental impact assessment. Permitting today is a possible method of prevention, but these regulations include environmental requirements as a secondary element to the main permitting requirements. The environmental administration may only give consent to a more basic operating permit. Here the main problem is what kind of environmental preconditions are used in giving consent to a basic permit. In most of the cases this environmental consent is merely a collateral agreement to the operating permit and its impact on the plant operation is greatly connected with the personal enthusiasm of the public servant in question. Only in a very limited number of cases - like in nature conservation - is there a possibility to introduce first-hand environmental permits. The permits could serve as good sources for compliance instead of further involvement of public administrative authorities.

            - Every area of administrative regulation contains the possibility of positive or negative obligations. For example, industrial activities causing air, water or noise pollution over a certain period of time may be stopped or limited. In addition, the use of arable land for purposes other than agriculture without a permit is prohibited. If this requirement is violated, restoration to the original situation (in integrum restitutio) may be required. In practice, however, one can hardly find examples where these kinds of measures are used.

 

            2.The indirect measures can be:

 

            - Administrative sanctions, the most frequently used measure being the environmental protection fine. The present act formulates the general rule, stating that all persons who pursue activities contrary to statutory provisions and official orders serving the protection of the environment or fails to meet his obligations prescribed by the same, may be (sometimes must be) obliged to pay a fine for environmental protection according to the extent and dangerousness of such environmental pollution, harm or damage. The fine is considered a measure to protect the general interests of the environment. If a polluter pays a fine, he still may be required to pay compensation for damages or may be subject to criminal penalties etc. These fines are media specific (12).

            - A different kind of administrative sanction is the administrative levy against a violator for a petty offence. A petty offence is a smaller violation used to penalise the negligent or intentional wrongdoing of private persons.

            - The administrative agency may enter into negotiations with the polluter, the consequence of which can be a public administration contract, using the agency's discretionary right to use measures other than sanctions. In the present situation, this contract is rather a mere possibility than a frequently used method of negotiating compliance with the potential polluters.        

            - The present development of a market economy favours the use of economic instruments or incentives (13) more than even the near past. The best method of achieving compliance among the market players should be to use market-friendly measures, which orientated the possible polluter in the direction of meeting environmental requirements. The first of this kind of measure was to introduce a product fee on the price of petrol in the spring of this year.

            If we examine the situation concerning the practical use of all these measures, one can hardly find a clear-cut list of priorities in using these measures nor is there even a kind of manual to introduce these measures to those practising environmental administration or doing business in environmentally sensitive areas. The practical situation can be summarised like this: there is less emphasis on prevention and more on sanctions, especially on special fines. The use of direct intervention is very rare as are also in the case of measures requiring co-operation between the public administration and the polluter. Today there are almost no incentives or other economic measures used although in the longer run these measures can have an effect of influencing the decision-making process of the polluting economies. In short if we ask whether an enforcement strategy exists based on the use of all these measures, the answer should be not much.

 

2.3.2 Civil Law (private law)

 

            To explore existing civil law measures that offer a prospect for environmental enforcement, two basic assumptions must be made: first, there is no need for new special civil law measures, as the present ones are sufficient to satisfy the interests of environmental protection; second, civil law today plays a very limited role in environmental protection. This situation is partly due to the past preference for administrative law, and partly to the weakness of the private sphere and a lack of willingness to litigate.

 

            The following are the major options in the Hungarian Civil Code for safeguarding environmental protection interests:

            - Personal integrity rights,

            - Intellectual property rights,

            - Nuisance (neighbourhood rights),

            - Trespass (possession rights),

            - Private contractual relationships,  

            - Compensation of damages.

            Personal integrity rights represent a good opportunity for environmental protection interests, because they protect the rights of personal life, health and physical integrity. However, they are rarely used to express the integrity of the private person against the state or the public administration. The consequences of the infringement of these personal integrity rights  (as is the case with intellectual property rights, nuisance and trespass) could be numerous, ranging from the simple statement that an activity is unlawful, to imposing conditions upon use, or even to stopping the unlawful activity until compensation is given. The court may even impose an extra levy on the wrongdoer if the other remedies, particularly compensation, do not fully redress the seriousness of the unlawful conduct.

            Intellectual property rights can serve as preventive measures in two ways. A direct means is to include environmental requirements in standards for obtaining a license for an invention. The precondition that an invention be progressive can include that the invention reduce (or at least not increase) pollution. A less direct means is to use a label on a product that proves it is environmentally friendly.

            Nuisance law (or in Hungarian terms the regulations of neighbourhood rights and obligations) is an easy way to prove the infringement of rights based on an environmental content. Under Art.100 of the Hungarian Civil Code, an owner must avoid those activities, which needlessly disturb others (particularly their neighbours), or endanger the exercise of the rights of others. Nuisance is not restricted to the actions of immediate neighbours. There is an uncertainty as to what conduct is needless, as neighbours must tolerate some level of disturbance.

            Trespass (or in Hungarian terms, infringement of possession rights under Art.188 of the Civil Code) creates a theoretical right to undisturbed possession of property. Like in nuisance, the disturbance must be examined on a case-by-case basis and balanced against locally acceptable levels of disturbance.

            All the above mentioned measures have a common characteristic that makes them especially useful in environmental protection. No negligence or intent is required on the part of the offender for any of these measures, which creates a kind of no-fault liability. In addition, under the last two measures until last year could serve as a basis for indirect judicial review of administrative decisions, which otherwise was greatly restricted (14).

            Contractual relationships may also embody environmental protection interests. This embodiment may weaken contractual obligations where there are conflict of interests. For example in statement No.25 (1980) of the College of Economic Cases of the Supreme Court the court stated that a contractor has the duty to follow environmental regulations even where responsibilities have been delegated to others.

            At last we have to mention the compensation of damages under Civil Code Art.345. If the compensation of damages is connected with endangering the environment, it shall be subject to the strict liability provision of the Code pursuant to the rules relating to especially dangerous activities. This practice is far from being satisfactory. The cases are limited to more simple, individual cases due primarily to a lack of willingness to litigate. The preventive measure of Art.341 of the Civil Code must also be mentioned. This gives authorisation to courts to order preliminary obligatory steps (e.g., to stop or limit the damaging activity) in order to avoid damages.

            Even if the present situation of labour law relations is not absolutely clear (due to pending legislation on the labour code), reference should be made within private law issues on the potential use of labour law regulation. In many cases, the pollution is the consequence of some negligent employee's activity. Labour law has a possible twofold role in environmental protection.

            - First, environmental requirements could be adopted as aspects of professional conduct (here we may also mention professional ethics, which nowadays tends to contain environmental elements, although not in Hungary).

            - Second, labour law could include a set of disciplinary rules and sanctions, also special compensation rules for damages caused to the employer, where the damage could be a fine imposed on the company. Both based on the new field of professional conduct but also on the general obligation not to infringe legal regulations.

 

2.3.3 Criminal Law

 

            Criminal law can hardly be included as an instrument of deterrence in Hungary's environmental law, as there is no real practice of this kind. Criminal law can only be a last resort (ultimo ratio) to protect environmental interests, and has no concrete preventive element. An additional difficulty in using criminal law for environmental protection is the fact that in Hungary (as in other legal systems of Europe) criminal responsibility cannot be imposed on legal persons (e.g., corporations). Only natural persons may be liable under criminal regulations, or those who are acting on behalf of the legal entities.

            The general environmental protection act includes a criminal provision for environmental violations, and in 1978 the new Criminal Code enacted two special offences: (1) damaging the environment, and (2) damaging nature. The distinction between these two crimes is based on whether nature conservation areas are effected. Both crimes have a version of felony and misdemeanour. In addition, some general crimes like bodily harm or even murder could be used in connection with environmental interests. In the small number of practical cases occurring in Hungary, the offence of endangering life in pursuance of professional regulations proved to be the favourite one. Of course this crime does not really reflect the special environmental interests.

 

2.4 Organisational structure of environmental protection

 

            When evaluating the present organisational system of environmental protection, the most important questions to ask are whether this organisation may easily serve the interests of necessary integrated pollution control, and whether the structure follows the basic requirement separating the economic use of a natural resource and the protection of the same resource. One of the basic problems of the Hungarian environmental protection system was that the separation of interests could not be achieved as even in the broadest level of government, the state administration and the state owned economy existed hand in hand. The other major problem has always been the lack of harmonisation and co-operation among different organs having a role in environmental protection, in many cases due to the lack of a clear-cut division of responsibilities.

            In 1990 the Ministry of Environmental Protection and Regional Policy was established - the third version for the central environmental administration within 3 years. The Ministry carries the greatest responsibility in environmental protection. In addition to environmental protection its responsibilities include regional planning, building-construction, the management of public and historic monuments, and the supervision of meteorology services. The environmental tasks of the ministry include air and water pollution, nature conservation, general landscape protection, noise abatement, waste management, radiation and forest protection. For environmental responsibilities, two centralised administrations have been established under the Ministry: the Chief Inspectorate of Environmental Protection, with 12 regional offices; and the National Office for Nature Conservation with 8 regional offices.

            The second most important government institution for environmental protection is the Ministry of Transport, Telecommunication and Water Management. This ministry is responsible for water management and use - but not for the protection of water quantity and quality, which is the responsibility of the Ministry of Environmental Protection and Regional Policy. The Ministry of Transport, Telecommunication and Water Management has a National Office of Water Management and 12 regional offices.

            Other ministries also have a great number of environmental responsibilities. The Ministry of Public Welfare and its Public Health Service is active in the field of pollution effecting public health, the Ministry of Land Cultivation with its centralised system of land offices governs soil protection, the Ministry of Interior protects settlements, the Ministry of Industry is responsible for mineral resources and energy and the National Atomic Energy Agency is the exclusive authority for the use and safety of nuclear power.

            The conclusions driven from the above short overview: there is a lack of concentrated environmental administration obligations, and in a number of cases the user of the environment and the one responsible for the protection is the same organ. In addition, although the Government is responsible for harmonising environmental interests, this has not been realised because the economic development pressure suppresses them. Because of the lack of co-operation and harmonisation, the present draft environmental laws propose to set up consultative bodies for this reason.

            On the local and territorial level, the greatest power is in the regional organs of the different ministries. The local governments have much less power, although they are not excluded from taking over a greater sphere of tasks, their actual tasks are determined by their narrow financial resources. The officials of the local governments - the mayors and the manager - also have a number of administrative (including environmental) responsibilities given to them by the central administrative organs. This means that in these cases they are not acting like local government officials, but as the representatives of the central administration. The division of powers between the central organs and the local governments still remain a major discussion point.

            From among the other public bodies, it is worth to mention the public prosecutor's offices, which have general legal supervisory powers over the administration and partly over the economy. They are also responsible for criminal prosecution. Although the possibilities of the prosecutor's offices are great, they in practice have only a minor role in environmental protection, much less than is desirable. The primary reason for this is their lack of experience in the field of environment.

            The judicial system, with the new improved powers of judicial review over administrative decisions, will soon have a much more direct input in environmental law enforcement. In addition, there is a growing interest among possible parties, mainly citizens, to litigate even using the possibility of civil law. In the courts, political and economic pressures have less input. We may also mention here the special role of the Constitutional Court, having the power to judge the constitutionality of any kind of legal rules.

 

2.5 Monitoring and Information

 

            We examine the monitoring questions also from the point of view of obtaining and processing information. Monitoring environmental pollution can be the duty of the administrative organ or may be an obligation of the polluter (e.g., self-monitoring, as in the case of air-pollution or hazardous waste regulation together with self-record keeping and recording). Both possibilities require effective state control, as without it no self-monitoring will serve the interests of information on the state of environment. The state-administered monitoring also must be harmonised, as it is the responsibility of a number of organs. Instead of harmonisation in today's Hungary, the different agencies prefer to take the processed data as their own exclusive property. This consequently means a lack of effective co-operation among state organs.

            The local governments can participate only in theory in monitoring activities, having no real stock of technical facilities (except Budapest). Therefore, they rely strongly upon the centralised systems, and consequently the local governments depend upon the given information.

            The information system is a basic condition of effective enforcement from both an environmental administration point of view and from the public participation view. Even with the existence of a reliable information system, the methods of obtaining and disclosing the required information is also a vital part of an effective system. This includes:

            - A reliable set of information on the state of environment in general,

            - The information systems of different agencies are convertible and accessible,

            - There is an obligation of the government to disclose periodically major environmental information,

            - There is an obligation of the government to provide information to the other government or local governments,

            - There is access to information on the state of environment in general, and also on specific environmental pollution.

            In the case of most of these requirements, the situation in Hungary is far from satisfactory. This creates a major handicap for environmental enforcement (15). Some (but certainly not all) of these problems shall be solved with the creation of a GIS system supported by the PHARE project.

 

2.6 Public Participation

 

            A great potential ally for serious environmental regulatory and enforcement policies could be the public itself and those organisations (NGOs) which have environmental protection as their main purpose. The past political history demonstrates an objection to public participation, under the rationale of socialist harmony of interests, represented by the state. As a follow-up to the prior section, an important condition to public participation is public access to information.

            Access to information, clear-cut terminology of official and business secrets, and conditions for participation issues are missing in general legal rules. The general rules of administrative procedure do not give guidance in this field. While there is no "community right-to-know" rule within the past administrative regulations, a recent law could create a kind of access to information. This law establishes the Public Health Service and requires the Service to monitor and collect data related to the public health effects of pollution. This information is available to the public, and the Service is required to publicise data on the health effects.

            As a second question, we move to the rule-making procedures where the former socialist requirement of open discussion of legislative drafts was dismissed as being formal and only an alibi of the state to avoid the real democratic legislation. According to the Parliament today, living in a rule of Law State there is no formal need for open discussion. From the possible public participation awareness only an opportunity to call for a referendum prevailed.

            The Constitutional Court procedure, somewhat more than 2 years old, gives room for citizens to ask for the constitutional review of legal rules without requiring direct involvement of the citizen in a case. The Court's standing requirements may be the broadest in the world, virtually covering all the cases of post-regulatory supervision and also a great extent of pre-regulatory control. (In effect, the Court is too busy to address all cases in due time.) Citizens may challenge the constitutionality of a regulation serving as the basis for a judicial or administrative decision affecting their constitutional rights. The Court may invalidate the regulation, but not the individual decision.

            In administrative decision-making procedures such as permitting or direct orders, there is no explicit rule for public participation. Under the general rules of administrative procedure, only "interested parties" can be involved in these procedures. The term of interested party is interpreted in a way to limit involvement to those "whose rights or lawful interests are being affected". The interpretation of this provision today is limited to the narrowest possible sense, covering only direct and material interests.

            If we speak about administrative procedure, we should mention the different control mechanisms where the public participation could be effective. There are no direct provisions for public participation in this control, and no public disclosure of the control activities. Information obtained in a public monitoring action may serve as a basis for initiating a kind of administrative procedure. However, there is no obligation on behalf of the administrative organs even to answer the proposal in due course. (Interestingly, the last general provision for public control was the existence of national and territorial "public control offices", deleted by the new Parliament as being only measures of a fake democracy.)

            The possible participation of NGOs also requires a kind of standing in administrative and judicial procedures, which is missing in Hungary. There are presently no legal rights to bring a class action. The EIA process could be one to cover public participation directly, including NGO rights, but these rules are still in a drafting stage. In civil litigation, a serious drawback in addition to the lack of procedural solutions (such as to give standing to the NGOs) is the requirement that costs of litigation must be paid in advance. There is no statutory exception from this general rule based on the priority of environmental interest.

 

 

3 CHANCES FOR BETTER ENFORCEMENT

 

            Before any speculations about the future of Hungarian environmental law, if we hope to set up a better enforcement system in the near future, we must have a positive expectation that it will be achieved. Hungary already has mechanisms to create a better enforcement system. The development of such a system mainly relies upon the serious and wilful decision of the Parliament and Government to have real environmental requirements and strictly execute them. In addition to these two most important central regulatory (and in the case of the Government also administrative) organs, we have to add the possible emerging role and responsibility of local (and territorial) governments in formulating regulations and decisions and also in executing legal provisions. The greatest obstacles in the process of developing a new environmental protection structure, however, can be found in the economic and financial resources rather than in the legal system.

            The first option for developing a better enforcement system is to review the present general legal and environmental protection regulations, in order to identify those elements, which can serve the environmental protection interests easily as they stand now. There are already a great number of useful legal measures, and we even may state that the majority of effective enforcement possibilities are already existing. Here we can list such instruments as the permit system, strict liability in compensation, criminal liability. These measures need not be amended in a hurry, as the revision of selected elements of the legal system (instead of the possible restructuring of the whole system) could easily disturb the possible utilisation of the otherwise relatively effective measures. While using the elements of the existing system, we can also learn how to improve them. On the other hand without this kind of practical improvement there is a possibility to develop the new system with similar handicaps of implementation or enforcement.

            As to the overview of the existing legal instruments, there are two major ways to bring them closer to the needs of effective environmental enforcement:

            - Tailor the existing instruments to the modern concepts of market economy and stricter requirements of protection, together with the overall reconstruction of the legal system (for example as it has happened in the case of environmental protection fines there is no use to make a distinction between natural and legal persons, as today both may be the subject of any kind of economic activity);

            - Formulate the administrative and judicial practice in the required direction of environmental enforcement (for example, interpret the constitutional right to a healthy environment in a way that allows it to serve as a general litigation basis, or educate judges and administrative officials on the specialities of environmental protection cases).

            These are only two of many aspects of the present unique environmental protection system. These main aspects will assist in the creation of a potentially effective environmental legal system. However, these are only tools in the carpenter's toolbox and if there is no skilled carpenter (or he does not want to work) they are useless. The effective use of these tools will turn on the existence of an environmental policy and strategy, a part of which shall be the enforcement policy. The essential environmental policy will:

            - Identify priorities, both between economy and environmental protection, and also within the several environmental protection targets;

            - Establish time limits and deadlines for compliance (i.e. compliance schedules) and also outline enforcement strategies;

            - Locate the purpose and means of use of government financial resources.

            A concrete method for setting priorities could be to identify those areas where the best result can be realised with the smallest amount of financial resources, among others in order to attract the public. These mean in the greater number of cases simple practical solutions, like the extended use of bottle deposit and return systems. In this way we can activate enforcement even if the environmental financial resources are not sufficient to solve the much bigger pollution problems, as the cleaning up of abandoned waste sites. Together with these practical steps, we must also identify those great hazards where immediate steps should be taken.

            The necessary reconstruction of environmental law should come only after an environmental policy is adopted, which is not characteristic of the given environmental law drafting. Without this the drafting could proceed as if it was policy-making. In the modern comprehensive act on environmental protection, we must cover at least the following items, in addition to using possibilities of the existing toolbox:

 

Substantive law:

            - Environmental impact assessment and environmental auditing,

            - Public participation, NGO rights,

            - Market elements to be built into the developing market system and also into the environmental law,

            - Funding issues.

 

Organisational issues

            - Harmonisation and co-operation among government agencies and between agencies and polluters,

            - Special task forces in prosecutor's and police offices,

            - Local government roles and responsibilities,

            - Ombudsman.

 

            Last but not least, as a general condition we should not forget about environmental law and enforcement education in a greater context, raising the environmental consciousness of the regulators, decision-makers and enforcement officials, and also of the public.

 

 

NOTES AND REFERENCES

 

 

(1) Although the European Community is the one organisation most of the CEE countries wish to join, more and more countries of the region also could become members of the Council of Europe. It is worth to mention here the Council's Recommendation 1131 (1990) on the environmental policy in Europe (1988-89), adopted on 28 September 1990. In paragraph 7, it states:

 

            "At a time when relations with the countries of Central and Eastern Europe are opening up, we are also discovering the scale of the assaults on the environment in these countries, assaults to which we cannot remain indifferent and which will require particular attention from Europe as a whole."

 

(2) Program for Transition and Development of the Hungarian Economy.

 

(3) As Hilary French states in Worldwatch Paper 99 - Green Revolutions: Environmental Reconstruction in Eastern Europe and the Soviet Union (November 1990): "Though their environment do not show it, both the Soviet Union and the East European countries have stringent environmental regulations on the books.... Unfortunately, enforcement of these laws has been poor." (P.34.)

 

(4) As the Worldwatch Paper 99 stated at the end of 1990 (being more or less true also today): "Hungary still has a relatively ineffective environment ministry that, until September 1990, was combined with a public-works-style water development agency. It is too soon to tell whether the separation of agencies will enable the environment ministry to pursue its mandate more effectively. Ominously, the administration of construction was combined with the environment ministry. Says environmentalist János Vargha: 'This could be a new fox in the henhouse.' " (P.39.)

 

(5) The present general act in force concerning the protection of human environment is the Act No.II.of 1976.

 

(6) The 1992 Environmental Almanac (compiled by the World Resources Institute) also uses the example of the lake as a positive one in the country: "Lake Balaton, one of the largest fresh-water lakes in Central Europe and an important recreational area in Hungary, has been threatened by sharply increased levels of industrial and municipal pollutants. The excess nutrients threaten to overfertilize the lake and promote the growth of algae. Government efforts to improve water quality, which began in 1983, have helped; after updating 10 sewage treatment plants, the total amount of phosphorus entering the lake has been halved." (P.490)

 

(7) There are more than 250 different legal regulations, which directly or indirectly refer to environmental protection interests, but all were adopted at different times and under different circumstances.

 

(8) In this paper there are at least three basic regulatory philosophies concerning environmental regulation. The main purpose of regulation differs due to these different philosophies. The most general and common philosophy up till now focuses regulation on the present state of mankind and takes man as the main subject to protects. The second possibility is to focus on future generations also, this requiring greater efforts from the present generation, because they are not the only guardians of the environment. The third and broadest philosophy is the concept of biodiversity, where not only the human environment must be protected, but also the environment as it is.

 

(9) Act No.II. of 1976 on the protection of human environment, Art.2. (2).

 

(10) In the past several years we can present examples for this kind of legal evolution: the Environmental Protection Act 1990 (1990 c.43) of Great Britain; Act No.V.of 1991, An Act to protect the Environment of Malta; the Dutch draft of the environmental protection (general provisions) act from September 1989, still under discussion; and the German general Umweltgesetzbuch draft from 1991, still in the process of preparation. The latter two reflect a commitment on the part of the drafters to develop further modern regulation. There are also some trends towards a comprehensive international covenant on environmental law, such as the draft of the IUCN - "Covenant on environmental conservation and sustainable use of natural resources" from April 1991. Even in the United States, The Conservation Foundation drafted a comprehensive environmental protection act in 1988, primarily written by Terry Davies.

 

(11) Bulgaria adopted a general environmental protection act in October 1991.  The act is a general one and relies greatly on further legal provisions, but covers the most important legal measures such as impact assessment.

 

            The Czech and Slovak Federal Republic adopted an act concerning the environment in December 1991.  The concept is similar to the Bulgarian act, namely to give only the outline of the regulation. The act tries to encompass the conceptual questions, such as principles or guidelines for future regulation and practice. Based on the federal act, both the Czech and Slovak Republics are drafting their own environmental laws.

           

            The Polish draft was also completed last year, but has not been adopted (the acts nature protection provisions were adopted in a separate act). A known draft of the act includes 301 articles, and regulates both environmental components and major legal instruments in a rather detailed way.

 

            In Romania, the 9th version of their environmental protection draft was completed in December 1991. This draft follows also the method of detailed regulation, leaving less for the later implementation.

 

(12) Today the following seven fines exist: land protection, water pollution, and sewage pollution, air pollution, nature conservation, hazardous waste and noise or vibration.

 

(13) The economic measures can be divided at least into the following categories:

- Fees, fines and environmental payment obligations,

- Subsidies,

- Benefits and compensations including deposit-fees,

- Marketing of environmental obligations,

- Fiscal obligations,

- The rules of using public services,

- The rules of self-monitoring on behalf of the companies.

 

(14) For example, the Supreme Court in its decision Pf.IV.21.023/1984 stated that "any kind of industrial or commercial activity must be carried on without causing any harm to the right of possession. If the opening hours are the source of harm (the case was a noise-pollution case), there is a possibility to order the restaurant closed during the (otherwise permitted) night hours."

 

(15) A concrete example of the general lack of information could be found in a publication, sponsored by the Ministry of Environmental Protection and Water Management, titled "Studies on the National Environmental Situation" (Tanulmanyok hazank kornyezeti allapotarol) in the Environmental Policy Series, No 1, page 37 stating:

            "The precise definition of the present soil pollution situation is a question that has not been solved because of the lack of a monitoring system.... To be able to register, tackle and forecast the soil pollution such a monitoring system, information system and evaluating methodology is necessary which is capable to measure separately and collectively the effects of those polluting agents having different origin (industrial, traffic, agricultural, waste-depository and communal) and different chemical compounds and so they are also good for shaping and using the different preventive methods."


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