Personal and material scope

AuthorKádár, András
Pages38-63
38
3 PERSONAL AND MATERIAL SCOPE
3.1 Personal scope
3.1.1 EU a nd no n-EU nat ionals (Recit al 13 and Article 3(2), Directive 2000/43
and Recital 12 and Article 3(2), Directive 2000/78)
In Hungary, there are no residence or citizenship/nationality requirements for protection
under the relevant national laws transposing the directives. Article 1 of the ETA proclaims
that ‘based on the requirement of equal treatment, natural persons and groups of n atural
persons as well as legal persons and organisations that do not have legal personality shall
be treated in line with the provisions of this law, with equal respect and consideration, and
equal account shall be taken of individual features’. Thus, all natural persons fall under the
ETA’s protection irrespective of nationality/citizenship.
This includes irregular migrants, which does not however mean that the fact that someone
is an irregular migrant cannot result in the justification of differentiation, e.g. because this
fact makes the irregular migrant’s situation not comparable to that of another person, or
because the irregularity of his or her stay may be regarded as a reasonable ground for the
differentiation. However, as a general rule, irregular migrants, as natural persons who are
under Hungarian jurisdiction, are also protected by the ETA.
3.1.2 Natural and legal persons (Recital 16, Directive 2000/43)
a) Protection against discrimination
In Hungary, the personal scope of anti-discrimination law covers natural and legal persons
for the purpose of protection against discrimination.
As mentioned above, Article 1 of the ETA proclaims that ‘based on the requirement of equal
treatment, natural persons and groups of natural persons as well as legal persons and
organisations that do not have legal personality shall be treated in line with the provisions
of this law, with equal respect and consideration, and equal account shall be taken of
individual features’.
Furthermore, when defining discrimination, Articles 8 and 9 of the ETA refer to ‘a person
or group’ and ‘certain persons or groups’. The ETA itself does not define the term person
for its purposes. Thus, the terminology of the Civil Code where persons are defined as
natural (természetes) or legal (jogi) shall apply if interpretation is necessary.
Protection against discrimination can also be sought under Articles 2:42, 2:43 and 2:51 of
the Civil Code. Under Article 3:1 of the Civil Code, provisions relating to protection against
the violation of inherent personal rights (which include the right to non-discrimination)
apply to legal persons unless, due to the nature of the protection, it is limited to natural
persons. For the purposes of protection, therefore, legal persons are generally included.
b) Liability for discrimination
In Hungary, the personal scope of anti-discrimination law covers certain natural and legal
persons for the purpose of liability for discrimination.
For historical reasons, the ETA primarily lists (mostly public) legal entities in relation to
liability. Under Article 4, these include: the Hungarian state, local and nationality self-
governments, public authorities, the army, the police, prison services, border guards,
public foundations and associations, organisations representing employees’ and employers’
interests, bodies providing public services, schools and universities, persons and
institutions providing social and child protection services, museums, libraries, private
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pension schemes, voluntary mutual insurance schemes, health service providers, political
parties and other organs funded from the central budget.
Four groups of private actors are mentioned in Article 5. Private actors fall under the scope
of the ETA and shall therefore abide by the requirement of equal treatment if they (i) offer
a public contract or make a public offer, or (ii) provide public services or sell goods to the
public. The third group includes entrepreneurs, companies and other private legal entities
(including educational institutions and their maintainers) availing of state support, while
the fourth group comprises employers and contractors.
Those private actors who do not fall into these four categories are liable for discrimination
under the general norms of the Civil Code pertaining to the protection of inherent personal
rights.
The following are expressly excluded from the ETA’s scope (Article 6): (i) family relations;
(ii) legal relations between relatives; (iii) issues relating to the faith of churches (to use
the exact and not entirely clear wording of the Hungarian legislation: ‘a denominational
legal person's legal relationship directly related to the denomination's religious activity’);
(iv) the internal operations of NGOs and legal entities, except for those operations
establishing and terminating membership. Political parties are also an exception to this
rule: in their case, only differentiation based on political views falls outside the scope of
the ETA.
The ETA's solution concerning personal scope may easily be in breach of the directives, as
it exempts most private and certain public actors from the ETA's application in sectors
covered by the directives.
The reason for this is that the ETA does not enumerate the fields falling under its scope: it
approaches the issue of material scope from the perspective of personal scope when it says
that the entities enumerated in Article 4 (see the list above) shall respect the requirement
of equal treatment in all their actions and practices (no matter which sector they operate
in).
Although the ETA’s scope extends to only four limited groups of private actors, the material
scope within which they shall abide by the requirement of equal treatment may not be
defined either.
While it is easy to find the corresponding material scope (employment and access to
publicly available goods and services) with regard to some of these groups (e.g. employers
or private actors offering goods and services, respectively), such a correspondence is
difficult to make with regard to the other two main categories (private actors making a
public offer and private actors receiving state funds).
It can be said, therefore, that the material scope of the ETA covers all possible fields and
sectors (and not only the ones included in the directives) with regard to the (mostly) public
entities listed in Article 4 and to some of the private actors listed in Article 5.
Nevertheless, the ETA puts special emphasis on five sectors, in relation to which special
rules (e.g. special exempting provisions) are formulated. These sectors are employment
(Articles 21 to 23); social protection and healthcare (Articles 24 to 25); housing (Article
26); education and training (Articles 27 to 29); and access to goods and services (Articles
30 and 30/A). However, this does not mean that the requirement of equal treatment shall
be respected only in these fields by the entities falling under the ETA’s personal scope.
These sectors are highlighted only due to their special importance.
The issue of personal and material scope bears specific significance because at this point
the Hungarian regulation may be in breach of the directives: the directives have a limited

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