Sensitive or controversial issues

• Author: Durbáková, Vanda
• Pages: 103-105

103

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national leve l

- The protection against discrimination guaranteed under the Anti-discrimination Act is

only provided in connection with ‘rights of persons provided for under special laws’.

This is the problem that in some areas (like social advantages, acc ess to goods and

services) the rights of the persons would be provided by generally bi nding legal

enactments other than laws (for example, Government decrees, ministerial

ordinances, gen erally bin ding ordinances o f self -governing bodi es or municipalities

etc.). See mainly sections 2.4(b) and 3.2.7 above for further details.

- The definition of harassment raises a few qu estions regarding full compliance with

the directives. See section 2.4 for more details.

- The judicial interpretation of indirect discrimination is not in compliance with

interpretation given by the CJEU case law. See section 2.3 for more details.

- The definition of disability in labour and social security legislation is v ery restrictiv e

compared to the de finition developed by the Court of Justic e of the EU in Skouboe

Werge and Ring.451 See section 2.1.1 for more details.

- If contract work falls outside legal relations covered by the Labour Code, it is probably

not covered by anti-discrimination provisions. See section 3.2.1 for details.

- Act 417/2013 on Aid in Material Need contains a provision (Section 10 (3 )) that

reduces the payment of the allowance in material need for each adult person who

does not carry out some kind of ‘work in the public interest’ or similar works in

amount of at least 32 hours per month. The provision appears to be indirectly

discriminatory on t he ground of ethnicity (again st the Roma). See section 3.2.6 for

more detail.

- Act 383/2013 on Childbirth Allowance and on Allowance for More Concurrently Born

Children clearly appears to be discriminatory towards Roma women. See section

3.2.7 for more details.

- Section 4 (3) of Act 571/2009 on Laws on Parental Care Allowance and Article 12a of

Act 600/2003 on Child Allowance appear to be discriminatory towards Roma. See

section 3.2.7 for more details.

- The conditions of job termination for university professors (when they reach 70 years

of age) and for judges and prosecut ors (when they reach 65 years of age) are very

likely in c onflict with CJEU case law. See sections 4.6.4(c) and (f) of t his report for

more details.

- The way in which the c ourts ha ve d ealt so far with ca ses where financial

compensation for non-pecuniary damage was sought indicates that, with regard to

this type of compensa tion, the sanctions are not effective, proportionate and

dissuasive. See section 6.5(c) for more details.

- The segregation of Roma children in education remains a very serious problem and

state authorities fall short in addressing it effectively. Se e section 3.2.8 f or further

details.

- Act 308/1991 on Freedom of Religious Belief and the Status of Churches and Religious

Societies may be discriminatory on the ground of religion for members of certain

religions or religious so cieties, since it significantly advantag es registered churches

and religious societies with regard to the legal and economic environment in which

they operate. See section 2.1.1 for more details.

11.2 Other issues of concern

The key issues of conce rn with regards to the implementation and p ractical application of

the anti-discrimination directives on the national level are the following:

451 CJEU, Joined Cases C-335/11 and C-337/11, HK Danmark, acting on behalf of Jette Ring v Dansk

almennyttigt Boligselskab (C-335/11), and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk

Arbejdsgiverforening, acting on behalf of Pro Display A/S, in liquidation (C-337/11), judgment of 11 April

2013.