Hungary – infringements: Commission takes further legal steps on measures affecting the judiciary and the independence of the data protection authority, notes some progress on central bank independence, but further evidence and clarification needed

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On 1 January, a new Constitution and a number of cardinal laws entered into force in Hungary. The European Commission immediately conducted a full legal analysis of the final versions of the new provisions and their compatibility with European Union Treaties and decided to launch three accelerated infringement procedures. Accordingly, three letters of formal notice were sent on 17 January to the Hungarian Government [IP/12/24, MEM0/12/12]. Within a deadline of one month, 17 February 2012, the Hungarian government sent its formal replies to the Commission. Following a thorough legal analysis, the European Commission has decided on further steps.

In two areas Hungary failed to comply with the EU Law: the retirement age of judges – which would lead to the anticipated retirement of 274 judges and public prosecutors in Hungary – and the independence of the country’s data protection authority. The European Commission therefore decided today to send two reasoned opinions – the second stage under EU infringement procedures after which the matter may be referred to the Court of Justice of the European Union.

In two other areas, the independence of the central bank and further aspects concerning the independence of the judiciary, the Commission sent two administrative letters demanding further clarifications.

Retirement age of judges

Hungary has failed to provide an objective justification for reducing the mandatory retirement age for judges, prosecutors and public notaries from 70 years to 62 years within a time span of only one year. EU rules on equal treatment in employment (Directive 2000/78/EC) prohibit discrimination at the workplace on grounds of age, which also covers a reduction of the retirement for one profession without an objective justification. Following the Commission’s letter of formal notice of 17 January, Hungary only proposed a clause that would allow to extend in individual cases the retirement age of a judge to beyond 62 if the judge passes a review by the National Judicial Council of his `professional and medical aptitude’. This proposal does not comply with EU law because such extensions may be arbitrary, apply only in individual cases and they do not remove the Commission’s main concern: the difference in treatment of judges with other professions.

Independence of the data protection supervisory authority

Hungary decided to create a new National Agency for Data Protection, replacing the previous Data Protection Commissioner’s Office as of 1 January 2012. The legislation prematurely terminated the regular six-year term of the Data Protection Commissioner, who was appointed in 2008. Here to read more.

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