22 of the ETA, and use Article 4 of Directives 2000/43/EC
adjudicate any complaint concerning differentiation based on the grounds protected by
these Directives and related to other aspects of employment (e.g. dism issal, promotion).
In the absence of related case law, it is not possible to say what kind of interpretation the
courts would follow. However, it would certainly be more reassuring if the legislator
amended the new provi sion in a way that makes it entirely clear that only a genuine
occupational requirement may serve as an exemption for differentiations based on the
protected grounds regarding any aspect of employment.
4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive
In Hungary, national law provides for an exception for employers with an ethos based on
religion or belief.
The above-quoted Article 22 of the ETA provides an exception for an ethos based on religion
or belief. Article 22(1)(b) claims that the principle of equal treatment is not violated if the
differentiation arises directly from a religious or other ideological conviction fundamentally
determining the nature of the organisation, and it is proportionate and justified by the
nature of the employment activity or the conditions of its pursuit.
Furthermore, Article 20(3) of the Act on Churches states that ‘denominational legal
personalities or religious associations conduct their public interest activities [educational,
healthcare, charity, social, cultural, sports, youth -related, child protection activities]
directly or through their institutions in accordance with their religious convictions, and
therefore, specific requirements may be determined concerning recruitment and the
establishment, maintenance and termination of the legal relationshi p of employment,
provided that these requirements can be regarded as justified by the nature or substance
of the given religious ethos, they are necessary for preserving and realising the ethos, and
they are proportionate’.
It is doubtful whether these provisions are full y in line with Directive 2000/78, as Article
22 of the ETA does not seem to incorporate the Directive’s notion of 'legitimacy'. Although
it is likely that, in the course of applying the law, courts and authorities would see this as
an implied requirement of any distinction based on religious ethos, there is no case law on
this issue yet.
Furthermore, according to the Directive, a differentiation based on the religious ethos of
an organisation may only be based on the religion of the person subjected to the
differentiation, and not on any other characteristics (e.g. sexual orientation), whereas the
Hungarian provisions do not impose this restriction on the application of these exempting
In the case of denominational school s, additional legal provisions cause further problems.
Article 32(1) of the National Public Education Act states that if the edu cational institution
is maintained by a denominatio n, (i) it may in the course of recruiting teachers and other
employees attach weight to considerations related to religion and belief, and define them
as criteria of recruitment; (ii) it may restrict or ba n teachers’ general right to carry out
their educational work in accordance with their beliefs and values (without imposing these
on the child or pupil); and (iii) it may – in its rules of operation and house rules and in line
with the teachings of the maintaining denomination – prescribe regulations concerning
appearance and behaviour, rights and obligations and religious activities. Disciplinary
proceedings may be launched against the child, pupil or teacher for breaching these latter