God save the Hungarians (III): is the EU’s crusade against Hungary likely to end in defeat and ridicule?

Posted on | January 25, 2012 by J.C. von Krempach, J.D. |

Last week, Hungarian Prime Minister Viktor Orban appeared before the European Parliament’s plenary session (watch the full debate here) to defend his government’s value-oriented reform policy against leftist/liberal/green/communist assailants.

While Orban remained calm and spoke to the point, some of his opponents were visibly not able to control themselves.  When asked by conservative MEPs to add some substance to their allegations and to explain more precisely when and where Hungary had violated fundamental EU provisions, former Belgian Prime Minister Guy Verhofstadt exploded in helpless rage (see at 15:47:26 on the video), yelling that the problem was not “that or that article, but the whole philosophy behind the operation of what is happening at the moment”.

Here, at the latest, it became quite clear that what is going on at this moment is a crusade of  left-wing and liberal politicians against a government that they fear will not share their cultural agenda.

The allegations about Hungary having violated EU law seem to be nothing than a mere pretext in this debate.

After weeks of loud-mouthed drumbeating in the media, where it announced that it would “call Hungary to order”, the Commission seems to have been desperately looking for some issues on which it could base formal legal procedures against Hungary. What it has come up with is less than convincing. As one can read in a press release published by the Commission some days ago, those issues relate to “the independence of its central bank and data protection authorities as well as over measures affecting the judiciary”.

Sources within the Commission’s own Legal Service (who prefer not to be identified) have expressed their serious concern over the apparent lack of foundation of the procedures tha Commission is intending to launch. “We are discussing this here among colleagues, but nobody of us understands what might be the legal basis for those allegations against Hungary. It’s a complete mystery”, one legal expert said.

As one can read in the Commission’s press release , of the three new infringement procedures one relates to the lack of independence of the Hungarian Central Bank, a second one to the lack of independence of the country’s supreme data protection officer, and the third to the independence of the judiciary. Thus, all three cases somehow imply that the Hungarian Government attempts to unduly extend its control over all branches of public life, including some that ought to enjoy a status of independence. On the other hand, while it may well be that Hungary’s new legislation on the central bank or on the data protection officer stands in contradiction to this or that provision of Community law, it seems somewhat exaggerated to describe this as a breach of fundamental rights or similar. Even at a time when fundamental rights have become somewhat inflationary, the independence of central banks certainly isn’t one.

The allegation that the independence of the judiciary is in danger, by contrast, needs to be taken much more seriously: the separation of powers is a fundamental pillar of democracy. Yet upon reading the Commission’s press release, one was surprised to learn that the accusation was not (as one might have expected) that Hungary is violating a provision of the Fundamental Rights Charter. Instead, the infringement procedure relates to a breach of Directive 2000/78 on equal treatment on the workplace.

The background of this case is the Hungarian Government’s decision to lower the pension age for judges from 70 to 62 years. Such a measure certainly is surprising at a time of economic crisis and aging populations, where common sense would suggest that pension ages should be raised instead of lowered. It is thus probably not without foundation to assume that the Government’s real purpose with this measure is to radically change the senior staff of the judiciary, replacing foes with friends – or, as those familiar with the country’s recent history might put it, to root out former Communists.

Given that among the judges affected by the measures (i.e. those aged 62 to 70), most have been selected, trained and appointed prior to 1989, i.e. at a time when absolute loyalty to the Communist Party was a strict requirement for any such appointment, the interest in anticipating their removal is certainly not difficult to justify. The windfall benefit is that, given that the measure applies only to judges above a certain age, it means that judges occupying key posts in the highest levels of the judicial branch will be disproportionally affected, and that those key posts can then be filled by appointees who share the values and convictions of the current Government. And it does not take much to predict that once this reversal has been carried out, the Government will all of a sudden discover that it is now time to again raise the minimum retirement age for judges, in line with what already is foreseen in regard of the general retirement age, which will prolong the term of the Government’s new appointees.

Even though the measure is cleverly drafted, nobody will be misled as to its political purpose, and not everybody will like it. But is it illegal?

The Commission’s reasoning runs thus:

 

The infringement case affecting the judiciary focuses on the new retirement age for judges and prosecutors and relates to Hungary’s decision to lower the mandatory retirement age for judges, prosecutors and public notaries from 70 years to the general pensionable age (62 years) as of 1 January 2012.

EU rules on equal treatment in employment  (Directive 2000/78) prohibit discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification is needed if a government decides to reduce the retirement age for one group of people and not for others. This principle was affirmed when the Court ruled that prohibiting airline pilots from working after the age of 60 constitutes discrimination on grounds of age. 

In Hungary’s case, the Commission has not found any objective justification for treating judges and prosecutors differently than other groups, notably at a time when retirement ages across Europe are being progressively increased and not lowered. The situation is even more legally questionable because the government has already communicated to the Commission that it intends to raise the general retirement age to 65.

Given that this is merely a quotation from a press release, it would certainly be interesting to read the Reasoned Opinion letter that the Commission is going to address to Hungary, which, it must be supposed, will contain a more elaborate version of the argument. But quite independent of the quality of the legal drafting, the issue raises a number of questions.

First and foremost, it is surprising to read that a law assimilating the retirement age of one particular group to that of the rest of society can be viewed as ‘discriminatory’. Isn’t it, quite on the contrary, setting an end to discrimination? Also, it is difficult to understand how a law that lowers a mandatory age for retirement can be “discrimination on grounds of age”. If it is discriminatory to cut off professional careers by fixing a mandatory retirement age, then it is completely irrelevant whether that age is set at 62 or 70 years, the one being as arbitrary as the other. Instead, it is the mere fact that retirement is mandatory that seems to cause problems.

But similar laws exist in all Member States – not only for judges, but for civil servants in general. If fixing a mandatory retirement age violates Directive 2000/78, then the Commission must first change the Statute of its own officials (which currently foresees compulsory retirement at age 67), and then initiate infringement procedures against all Member States, not only against Hungary. Otherwise, the discrimination would be that the Commission discriminates among Member States, cracking down on one and turning a blind eye to all the others.

But apparently the Commission sees the matter differently. To judge from its press release, the problem is not that retirement is compulsory for people who are still capable of doing their job, but that the retirement age has been reduced. The Commission says that “an objective and proportionate justification is needed” – and apparently was not provided by the Hungarian Government – “if a government decides to reduce the retirement age for one group of people and not for others”. In other words, the claim that the measure discriminates on grounds of age is given up as quickly as it has been made. Instead, the alleged discrimination is now not on grounds of age, but between different professions: judges and prosecutors should not be treated differently than other groups. But this sudden switch makes the argument hardly stronger than it was before. In the first place, the measure aligns the retirement age of judges and prosecutors to that of other groups, so that the affirmation that it leads to a difference in treatment seems patently beside the point. Or does the Commission mean to say that if the retirement age for judges is reduced by eight years, then the general retirement age must be reduced by the same amount of years, bringing it down to 54 years? That would indeed be a strange way of interpreting ‘equality’.

Secondly, being a judge or a prosecutor simply is not one of the ‘suspicious grounds’ recognized by the Directive, which prohibits discrimination “on the grounds of religion or belief, disability, age or sexual orientation”. The Directive does not seem to prohibit different retirement ages for different professions. And the proposed law foresees the same retirement age for all judges, irrespective of their religion, belief or sexual orientation.

Thus, if an argument relating to “discrimination” must be made at all costs, it might be recommendable for the Commission to build its case on the concept of ‘indirect’ rather than ‘direct’ discrimination. Given that the law is the same for all judges, there can hardly be direct discrimination. But it could be argued that the law, despite seemingly being the same for all, puts at a disadvantage a particular group of judges, namely those having started their careers under the communist regime. But that would again pre-suppose to introduce a novel category of victims into the complex orthodoxy of anti-discrimination. This new group of victims in need of special protection would consist of all persons who, in order to make a career as judges or civil servants, have shown a particular willingness and availability to serve a totalitarian government. Is this the hidden sense of the Commission’s action against Hungary?

I do hope that this case really comes to the ECJ, so that these matters will be clarified…

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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