Overall assessment

• Author: Lídia Hermina Balogh
• Pages: 87-89

87

12 Overall assessment

The following transposition problems were mentioned in this report:

1. Possible exemptions should be narrower in ca ses of direct discrimination (in alleged

direct discrimination cases, the scope of exemptions is similar to the scope all owed

in Directive 2006/54 only in relation to indirect discrimination);

2. Protection should be broader with r egards to indirect discrimination. The concept of

indirect discrimination is narrower in the Equal Treatment Act because it stipulates a

‘considerably larger disadvantage’ compared to a ‘disadvantage’ as mentioned in

Directive 2006/54;

3. The early retirement option (after 40 years of service) is available for women only;

4. There is a lack of adequate protection of fathers in the labour market (especially in

regard to certain aspects of parental leave and related rights);

5. There is a lack of governmental will to introduce the concept of non-transferable

parental leave (provided by Directive 2019/1158 on work-lif e balance for parents

and carers).

With some gaps, Hungarian law formally transposed the majority of EU acquis

communautaire, while some structural problems remain. Creating a definition of

breastfeeding and providing better legal protection for parents working in simplified

employment relationships would be an important step forward in the future. The major

structural shortcoming of the Hungarian legislation (dating back to the original adoption

of the Equal Treatment Act) is that in many regards the transposition is only formal, and

the law has never been scrutinised or modifi ed in order to support t he substan tive and

genuine equality of women (for example, in the case of self-employed women and spouses

of the self-employed). The rough regulation on equal wages has not had a significant effect

on the considerable gender wage gap, especially among well-educat ed persons.

The major theoretical shortcoming of the Hungarian legislation is that the excessively wide

scope of the Equal Treatment Act is counterbalanced by the similarly excessively wide

terms for exemptions.499 Consequently, protection is weak because the accused could

exculpate him/herself in many cases. The amendment to the Equal Treatment Act500

reduced the scope of possible justifications for sex-based differential treatment in

employment relationships, which was a considerable development in 2017. More

specifically targeted legislation, which weigh s the interests of the par ties more cautiously

and reflectively for specific situations of infrin gements of equal treatment rights, w ould

provide women, mothers and fathers with much more reliable and solid legal protecti on

than this boundary-fre e, highly general legislation, which in theory covers (with little

exaggeration) any kind of differentiation committed by any legal entity and an y person,

but is rarely enforced in practice due to its vague and unspecific content and the extremely

wide terms of the exemptions.

The enforcement of the equal treatment legislation is weak in Hungary. The sanctions that

can be applied by the Equal Treatment Authority cannot be considered to be effective,

proportionate and dissuasive, as it cannot order civil compensation or, for example,

reinstatement in the original job.

499 Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV.

törvény az egyenl bánásmódról és az esélyegyenlség elmozdításáról), 28 December 2003, Article 7(2)

Point (b).

500 Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV.

törvény az egyenl bánásmódról és az esélyegyenlség elmozdításáról), 28 December 2003, Article 22(1).