Opinion of the European Central Bank of 3 November 2010 on amendments to the Constitution and on the Law on legislation, regarding the legislative powers of the Magyar Nemzeti Bank (CON/2010/76)
Date: 2010-11-03
Institutions: European Central Bank
Subjects: Hungary, central bank, institutional reform, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 3 November 2010 

on amendments to the Constitution and on the Law on legislation, regarding the legislative powers 

of the Magyar Nemzeti Bank 

(CON/2010/76) 

Introduction and legal basis 

On  28  September  2010,  the  European  Central  Bank  (ECB)  received  a  request  from  the  Hungarian 

Ministry of Public Administration and Justice for an opinion on a draft law on legislation (hereinafter the 
‘draft law on legislation’)1. On 1 October 2010, the ECB received a request from the Hungarian Ministry 

of  Public  Administration  and  Justice  for  an  opinion  on  a  draft  law  amending  Law  XX  of  1949  on  the 

Constitution of the Hungarian Republic (hereinafter the ‘draft law amending the Constitution’) (the draft 

law on legislation and the draft law amending the Constitution, hereinafter collectively referred to as ‘the 

draft  laws’).  Since  the  subject  matter  of  the  draft  laws  is  closely  related,  the  ECB  has  merged  the  two 

consultations. 

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning of the European Union and the third indent of Article 2(1) of Council Decision 98/415/EC of 

29 June 1998  on  the  consultation  of  the  European  Central  Bank  by  national  authorities  regarding  draft 
legislative provisions2, as the draft laws relate to the Magyar Nemzeti Bank (MNB). In accordance with 

the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing 

Council has adopted this opinion. 

1.  

Purpose of the draft laws 

In  its  Decision  121/2009  (XII.17.)  the  Hungarian  Constitutional  Court  annulled  Law  XI  of  1987  on 

legislation from 1 January 2011. The reason for the annulment was that most provisions of the Law on 

legislation did not comply with constitutional developments that had taken place since its adoption. Since 

the remaining provisions were insufficient to constitute a legal act, the Constitutional Court annulled the 

Law on legislation as a whole, with such annulment to take effect in the future. The Constitutional Court 

also  requested  the  legislator  to  adopt  a  new  law  on  the  same  subject  matter  by  31  December  2010.  In 

response  to  the  Constitutional  Court’s  decision,  the  draft  law  on  legislation  has  been  prepared  and 

1  

2  

On 19 October 2010, the Hungarian Ministry of Public Administration and Justice submitted an updated version of the 
draft law on legislation.  
OJ L 189, 3.7.1998, p. 42. 

 
 
 
 
                                                 
submitted to the Hungarian Parliament for adoption. This draft law is to replace the Law on legislation 

and thus reestablish the legislation framework in Hungary. The decision of the Constitutional Court also 

obliged the legislator to regulate certain issues in the Constitution instead of the Law on legislation. The 

draft law amending the Constitution incorporates these issues into the Constitution. 

The draft law on legislation establishes the general requirements regarding legislation and regulates the 

scope, amending procedures, drafting and publication of legal acts, as well as the continuous monitoring 

of  the  legal  system  and  the  publication  of  legal  acts.  Under  the  draft  law  on  legislation,  a  Government 

decree will regulate in further detail the consultation procedures to be carried out with the institutions of 

the  European  Union,  including  with  the  ECB.  The  draft  law  amending  the  Constitution  provides,  inter 

alia, what constitutes a legal act, how legal acts should be adopted and published and also refers to the 

powers of the MNB’s Governor to adopt decrees. 

2. 

General observations 

2.1  The  ECB  understands  the  importance  of  the  adoption  of  the  draft  laws  since  a  valid  legislative 

framework  creates  the  foundation  for  the  national  legislative  processes.  The  ECB  also  welcomes 

the  establishment  of  an  up  to  date  legislative  framework  in  Hungary  that  will  ensure  that  the 

Hungarian authorities duly comply with their consultation obligations at European level. 

2.2  The  ECB  notes  that  under  the  draft  law  amending  the  Constitution,  a  decree  of  the  MNB’s 

Governor maintains its position in the legislative hierarchy and is at the same level as Government 

decrees.  

3. 

Specific comments 

3.1   The ECB welcomes the fact that the draft law on legislation establishes the general rules regarding 

the consultation procedures to be carried out with the EU institutions and also foresees the adoption 

of a Government decree that will regulate such procedures in detail. The ECB expects this future 

Government Decree to comply with Decision 98/415/EC. 

3.2   The  ECB  would  like  to  point  out  that  the  duty  to  consult  with  the  ECB  is  not  limited  to  draft 

legislative provisions which are to be adopted by a parliament. Decision 98/415/EC covers all types 

of legally binding provisions, including secondary legislation, as well as generally applicable acts 

of NCBs or supervisory authorities where these bodies have regulatory powers. However, this does 

not  mean  that  the  ECB  should  be  consulted  on  all  secondary  legislation  implementing  primary 

legislation  falling  within  the  ECB’s  fields  of  competence.  Given  the  objectives  of  Decision 

98/415/EC, it is clear that an opinion should only be sought from the ECB on such draft secondary 

legislation  if  its  subject  matter  is  closely  related  to  the  ECB’s  tasks  and  if  the  impact  on  areas 

within  the  ECB’s  fields  of  competence  differs  from  that  resulting  from  the  primary  legislation 

itself.  

2 

 
 
3.3  The  ECB  notes  that  under  Article  20(4)  of  the  draft  law  on  legislation,  the  MNB’s  Governor 

maintains the right to initiate consultation procedures with the ECB with regard to decrees of the 

MNB’s Governor. 

This opinion will be published on the ECB’s website.  

Done at Frankfurt am Main, 3 November 2010. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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