Sensitive or controversial issues

AuthorKádár, András
11.1 Potential breaches of the directives at the national leve l
While the Commission closed the infringement procedures launched against Hungary for
the ETA’s non-compliance with Directives 2000/43 and 2000/78 (in 2007 and 2010
respectively), and found that Hungarian legislation was in accordance with the Directives,
it is the view of the author that full compliance is uncertain in some areas and is highly
dependent on the judicial interpretation of the regulations in question. The areas in which
possible breaches may occur are summarised below.
Due to the comprehensive material scope of the ETA, the requirement of equal
treatment as set forth by the ETA applies only to a restricted circle of private actors.
Therefore, with regard to the sectors falling under the material scope of the
Directives, Hungarian law may be in breach of the a cquis, as it does not impose the
obligation of non-discrimination on all persons in the private sector. (For a detailed
explanation, see Section 3.1.2.)
Article 7(2) of the ETA allows for objective justification in certain cases of direct
discrimination, depending on the ground for discrimination and on the nature of the
right concerned (fundamental right or not). (For a detailed explanation, see Section
The rules for the justification of indirect discrimination are also not fully in line with
the Directives. (For a detailed explanation, see Section 2.3.)
The special exempting clauses also contain certain inconsistencies, unjustified
distinctions between certain grounds and wider possibilities for exemption than
allowed by the Directives (see for example Section 4.1 on the equal pay for equal
work principle and Section 4.2 on employers with an ethos based on religion or belief
and the regulation of genuine and determining occupational requirements).
Depending on judicial interpretation, some provisions of the new law on churches and
religion and the new law on public education may cause a contradiction between
domestic and EU law in relation to organisations with a religious ethos. (For a detailed
explanation, see Section 4.2.)
The Labour Code’s capping of the damages that may be granted if an employee is
dismissed in a discriminatory manner and does not request their reinstatement
seems to contradict the relevant jurisprudence of the CJEU. (For a detailed analysis,
see Section 6.5.)
The exclusion of workers of pension age from a severance payment may be in
violation of the relevant CJEU jurisprudence. (For a detailed analysis, see Section
The obligation of reasonable accommodation has not been unambiguously transposed
into Hungarian law. The problem is especially acute with regard to employing people
with disabilities, in spite of an amendment to the RPD Act, which if interpreted from
a strictly literal point of view only guarantees the requirement of reasonable
accommodation in relation to the recruitment procedure (i.e. primarily the job
interview), but does not prescribe that reasonable efforts shall be made to adapt the
workplace to the special needs of persons with disabilities to promote their actual
employment. (The situation in this regard is rather complex. For details, see Section
11.2 Other issues of concern
Public premises and services are still far from being completely accessible, even
though the obligation to provide an accessible environment has been in place for over
a decade.
The number of cases in which the Equal Treatment A uthority establishes
discrimination and in which a friendly settlement is reached is still very low compared
to the overall number of complaints to the Authority (in 2018, the combined number

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