Constitutional Issues Concerning Restrictions on the Fundamental Right to Property

Thoughts and Suggestions in Light of Recent Trends in the Right to Inheritance

Abstract

Decision 24/2023 (XII. 5.) AB (hereinafter: Abh.) can undoubtedly be considered a milestone in the Hungarian Constitutional Court's case law on the fundamental right to inheritance. The main objective of this paper is to demonstrate that the inspiring paradigm shift reflected in Abh. must necessarily have an impact on the fundamental right to property, which is closely related to the fundamental right to inheritance, as well as on the interpretation and assessment of restrictions on that right. On this basis, it is justified to reconsider and, in our opinion, to review the so-called "public interest test" developed in the 1990s for assessing the constitutionality of restrictions on the constitutional right to property. All this – despite the fact that it can be considered a deep dive into the relevant AB decisions – has explicit and direct relevance to public administration, since restrictions on property rights are typically related to the performance of public tasks, the protection of the public interest, and thus to substantive or procedural legal provisions regulating administrative powers – in short, to the law governing the functioning of public administration.