Remedies and enforcement

• Author: Kádár, András
• Pages: 83-100

83

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Hungary, the following procedures exist for enforcing the principle of equal treatment

(judicial/administrative/alternative dispute resolution such as mediation).

Judicial procedures

Civil courts

Victims of discrimination may sue in civil courts based on Articles 2:42 and 2:43 of the

Civil Code, claiming that inherent rights are protected by the Civil Code, and that the right

to non-discrimination is an inherent right. The possible remedies applica ble by the court

are listed under Articles 2:51-2:53 of the Civil Code. Article 2:51 reads as follows:

(1) A person whose inherent rights have been violated may – within the statute of

limitation – demand the following on the basis of the violation and depending on the

circumstances of the case:

a) a court declaration of the occurrence of the infringement;

b) to have the infringement discontinued and the perpetrator banned from further

infringement;

c) that the p erpetrator provides adequate redress and publicises this fact at his or

her own expense;

d) the termination of the injurious situation and the restoration of the previous state,

and the elimination of the object that came into existence as a result of the violation,

or to have such an object deprived of its injurious nature;

e) that the perpetrator or its successor hand over the financial asset acquired through

the violation.

Article 2:52 of the Civil Code stipulates that:

(1) A person whose inherent rights have been violated may claim moral

compensation for the non-pecuniary damage caused to him or her.

(2) The provisions pertaining to damages shall be applied to moral compensation –

with special regard to the determination of the liable person and exculpation – with

the difference that for moral compensation to be paya ble the claimant shall not be

required to prove any further damage be yond the occurrence of the violation of the

inherent right.

(3) The sum of the moral compensation shall be determined by the court in

accordance with the circumstances of t he case, with special regard t o the severity

and regularity of the violation, the degree of liability, and t he violation’s impact on

the claimant and his or her environment.

Article 2:53 stipulates that a person who suffers pecuniary damages as a result of the

violation of his or her inherent rights, may claim damages from the vi olator in accordance

with the general provisions governing damages.

These provisions provide victims of discrimination with a flexible instrument, as they apply

to all types of discrimination regardless of the field or ground.

84

Labour courts

In Hungary, ‘labour and administrative’ courts, as they are known, apply the Labour Code.

The most important remedies in labour law are the following.

The court may declare an agreement null and void under Article 27.

If the discrimination is manifested in the unlawful termination of employment, Article 82

stipulates that the employer shall compensate the employee for the damage suffered. Full

compensation is limited by Paragraph (2) of the provision, according to which a maximum

of 12 months’ salary may be claimed by the employee under the heading of lost income.

Under Article 83, if the termination of employment constitutes a violation of the

requirement of equal treatment, the employee may request th e court to order their

reinstatement (in other cas es of unlawful termin ation of employment, this option is only

available in exceptional cases, su ch as when the dismissed employee is a trade union

representative).

In other cases of discrimination (i.e. when it is not a dismissal that serves as the subject

matter of the case), the employer is liable to pay full damages to the employee, as set out

in Article 167 of the Labour Code.

Administrative procedures

The Equal Treatment Authority has authorisation to act against any discriminatory act,

irrespective of the g round of discrimination (e.g. sex, race, age) or the field concerned

(e.g. employment, education, access to goods). In addition to the authorisations requir ed

by the Racial Equality Directive, this body is vested with the right to impose severe

sanctions on persons and entities violating the ban on discrimination. (Section 6.5 will deal

with the sanctions that the Authority is entitled to impose, and the organisational structure

of the Authority will be described in detail in Section 7.)

The establishment of the Authority did not mean that all the administrative organs that

previously had authority to act in discrimination cases were deprived of their powers but it

did make it necessary to create a system preventing a clash of authority. The most

important administrative organs that have the power to act in discrimination cases are

described below, and the distribution of authority between them is then outlined.

Access to goods and services

Under Article 45/A(2) of Act CLV of 1997 on Consumer Protection 174 (hereinafter referred

to as the Consumer Protection Act), the consumer protection authority shall monitor

provisions related to the requirement of equal treatment to ensure that they are respected

in the course of access to goods and services . In the event that a breach is found, the

authority shall conduct proceedings. Under Article 47, if the authority establishes a breach

of the provisions guaranteeing consumers’ rights (including the requirement of non-

discrimination), it may apply a number of sanctions, including a fine, the maximum amount

of which is determined by the annual revenue of the service provider concern ed.

Education

Under Article 79 of th e National Public Education Act, the lawfu l operation of educational

institutions is supervised by G overnment offices located in each county and the capital. If

an office finds a violation, it may impose the following sanctions: (i) it calls on the head of

the educational institution to end the violation and notifies the institution’s maintainer; (ii)

if the educational institution is not maintained by the state or a municipality, it may request

174 Act CLV of 1997 on Consumer Protection (1997. évi CLV. törvény a fogyasztóvédelemrl), 23 December

1997, http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=99700155.TV.