Brussels, 20 November 2013
European Commission closes infringement procedure on forced retirement of Hungarian judges
The European Commission has today formally closed the legal proceedings launched against Hungary on 17 January 2012 over the country’s forced early retirement of around 274 judges and public prosecutors (IP/12/24). This had been caused by a sudden reduction in the mandatory retirement age for these professions from 70 to 62. Following the Commission’s legal action, the Court of Justice of the EU upheld the Commission's assessment (MEMO/12/832) that the change was incompatible with EU equal treatment law (Directive 2000/78/EC) which prohibits discrimination at the workplace on grounds of age. Following calls by the Commission for Hungary to comply with the judgement as soon as possible, the country took the necessary measures and adopted changes to its law.
The Commission is now satisfied that Hungary has brought its legislation in line with EU law. A new law adopted by the Hungarian Parliament on 11 March 2013 lowers the retirement age for judges, prosecutors and notaries to 65 over a period of 10 years, rather than lowering it to 62 over one year, as before. This aligns it with the general retirement age of 65. The new law also provides for the right for all judges and prosecutors who had been forced to retire before to be reinstated in their posts, with no need to bring a case to court. Moreover, they will be compensated for remuneration lost during the period they were not working. The Commission has closely monitored the correct implementation of the new legislation in practice.
In 2011 Hungary adopted legislation lowering the mandatory retirement age for judges, prosecutors and public notaries from 70 to 62 years within a very short transition period. In January 2012, the European Commission decided to launch infringement proceedings and referred the case to the Court (see IP/12/24, IP/12/222 and IP/12/395). Following a request from the Commission and given the urgency of the matter, the Court dealt with this case in an expedited procedure, issuing its judgment in less than five months. According to the Court's judgment (case C-286/12), the forced early retirement of hundreds of judges and prosecutors in the course of 2012 as well notaries in 2014, under a new Hungarian law, constituted unjustified age discrimination.
EU rules on equal treatment in employment (Directive 2000/78/EC) prohibit discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, differences of treatment based on age can be justified by a legitimate aim if the means to reach that aim are proportionate. This means Member States can fix age limits for mandatory retirement only on the basis of an objective and proportionate justification.
In Hungary's case, neither the Commission nor the Court of Justice found any objective and proportionate justification for the drastic lowering of the age limit for judges, prosecutors and public notaries. In addition, in view of the very short transitional periods for a reform of that extent (reduction of the mandatory retirement age by 8 years within a period of one year for judges and prosecutors) and the contradiction of first drastically lowering the age limit before raising it again as of 2014, the Court considered the measure to be incoherent and disproportionate, and therefore not in compliance with Directive 2000/78/EC.
On 16 July 2012, the Hungarian Constitutional Court declared the implementing provisions lowering the retirement age for judges as unconstitutional. However, that ruling did not reinstate the retired judges into their former positions.
The Opinion of the Venice Commission of the Council of Europe of 15 October 2012 called upon the Hungarian legislator to adopt provisions reinstating the dismissed judges in their previous position without requiring them to go through a re-appointment procedure.
A separate infringement case against Hungary on the independence of the national data protection authority was referred to the Court under the normal procedure and is currently pending (see IP/12/24).
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