Sensitive or controversial issues

AuthorKogovsek Salamon, Neza
11.1 Potential breaches of the directives at the national level
- There is no clear legal basis for persons with disabilities to be able to claim
reasonable accommodation in employment. Reasonable accommodation rights in
employment are not legally defined in respect of pe rsons who do not have the
official status of disability. This is probl ematic with regard to Article 5 of Directive
- Apart f rom defin ing the exception relating to a genuine occupational r equirement,
the law does not include a complete prohibition of direct discrimination on the
grounds of ethnicity beyond employment as required by Directive 2000/43/EC.
- The sanctions (fines for misdemeanours or minor offences) prescribed in a range
from a maximum to a minimu m are in fact p rescribed only at the minimum end of
the range. The Protection Against Discrimination Act does not contain explicit
authorisation for the in spectorates to impose fines higher than the minimum, which
means that, unless the law changes, legal persons will never have to pay mo re than
EUR 3 000 in fines for discrimination, while natural persons will not need to pay
more than EUR 250 or EUR 500, depending on the gravity and type of offence. This
indicates that the fines cannot be regarded a s effective and dissuasive (Article 17 of
Directive 2000/78/EC; Article 15 of Directive 2000/43/EC) .
- With the provi sions on the standing of NGOs and the Advocate, which are now
explicitly allowed to represent victims in judicial proceedings and act on their
behalf, a new problem has emerged. Namely, the conditions for representation are
now stricter for judicial cases of discrimination that are dealt with by county courts
than for any other ju dicial case. According to the Civil Procedure Act, anyone with
legal c apacity ma y represent a party before the county courts , while according to
the Protection Against Discrimination Act , an individual must have pa ssed the state
legal exam (bar exam) to represent a complainant. The conditions are therefore
stricter for cases of discrimination, which makes access to justice more difficult.
This is problematic with regard to Article 13(2) of Directive 2000/43/EC and might
be in violation of the principle of equivalence.
- On a related matter, it is not clear whether the ceiling for compensation, which is
set at EUR 5 000, is in place only for compensation that is claimed solely due to
exposure to discrimination or for c ompensation in cases of discrimination in
general. The verbatim interpretation supports the former position. If the f ormer is
true, the sanctions could not be consid ered dissuasive, as this would mean that
compensation in cases of discrimination can never exceed EUR 5 000 , even if the
actual damages were much higher. This is problematic with regard to Articles 7(1)
11.2 Other issues of concern
- It is not clear whether the Protection Against Discrimination Act provisions on
remedies that can be claimed before courts in cases of discrimination (termination
of the discrimination, compensation and publication of the judgment in the media)
now apply in addition t o the general tort law provisions or whether these provisions
have replaced the general tort law rules.
- There is no national action plan or strategy concerning discrimination. The situation
of the Roma, for which the Government Office for Nati onal Minorities is competent,
is often not dealt with as a discrimination issue. Disability issues are entirely left to
the Office for People with Disabilities within the Ministry of Labour, Family and
Social Affairs.
- Hate speech as a form of discrimination is rarely prosecuted.
- There is a lack of equality data, due to a strict interpretation of the Personal Data
Protection Act.

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