Domestic Soft Law Regulation during the COVID-19 Lockdown in Hungary: A Novel Regulatory Approach to a Unique Global Challenge.

Petra Lea Láncos,László Christián

doi:10.1017/err.2020.115

Abstract

On 13 March 2020 the Hungarian Government announced the immediate closure of all schools throughout the country to prevent the spread of COVID-19 forcing several hundred thousand children to learn from home, and teachers to ensure their education. The Hungarian Educational Authority hurried to issue recommendations on the use of digital education tools. During the COVID-19 pandemic and the special legal order consequently introduced by the Hungarian Government, Hungary has seen the emergence of such non-binding measures adopted by public entities, complementing governmental action against the pandemic, with the aim of providing guidance to bodies exercising a public service function ("addressees"). These protective measures adopted under the special legal order are deemed to be successful and are largely followed by the addressees. Since soft law has hitherto been neglected by both Hungarian administrative governance and the legal literature, the recent burgeoning of non-binding measures deserves scholarly attention. In this article, we set out to map the specific context of the emergence of domestic soft law and the conditions for its adoption and reception, relying on our case study conducted in respect of the National Educational Authority's recommendations.

Highlights

Countries around the world followed different approaches in managing their response to the COVID-19 pandemic
We argue that the proliferation of domestic soft law adopted by various administrative authorities, bodies and agencies to guide the behaviour of third parties at the time of the COVID-19 pandemic is a milestone in Hungarian administrative-regulatory behaviour, since beyond instances of internal guidance,[4] non-binding measures have hitherto hardly played a role in national administrative governance.[5]
6 We focused on this topic because, of the public bodies adopting external domestic soft law during the lockdown, only the National Educational Authority was open to answering our questions

Summary

INTRODUCTION

Countries around the world followed different approaches in managing their response to the COVID-19 pandemic. 2021 Domestic Soft Law Regulation during the COVID-19 Lockdown in Hungary complementary source, referring to it in order to bolster an argument,[24] but otherwise, the courts insist on their non-binding nature.[25] For example, the Curia highlighted in its judgment Kf.II.37.119/2019/5 that recommendations of the Hungarian Financial Supervisory Authority “are not legal acts and are not exempt from compliance with [the law]”. In its judgment Pvf 20094/2019/12, the Curia recognised the self-binding character of the Hungarian Financial Supervisory Authority’s recommendations These preliminary findings show that Hungarian courts will consider domestic soft law if deemed relevant to the case, in particular, to give further weight to the reasoning in support of applicable law or other relevant facts of the case. We provide a short overview and typology of regulatory efforts undertaken with the aim of meeting the challenges posed by the pandemic, highlighting the role of “external” soft law within the regulatory framework

Centralisation in the Hungarian administrative system

State of danger as a form of special legal order

Regulatory efforts to contain the spread of COVID-19

44 See also

CONCLUSIONS