Following detailed exchanges with the Hungarian authorities regarding new laws adopted under Hungary’s new Constitution (see IP/12/24, IP/12/222 and MEMO/12/165), the European Commission has taken stock of the situation.
The Commission noted progress on a number of issues, notably as regards Hungary’s central bank statute where the Hungarian government committed to take into account the Commission’s legal concerns and to amend its national legislation.
In two further cases, the legal concerns of the Commission could not be remedied. The Commission therefore decided today to refer Hungary to the Court of Justice of the European Union for two infringement cases concerning the independence of the data protection authority and the retirement age of judges, prosecutors and public notaries
1) Independence of the national central bank
On the independence of the central bank, on which Vice-President Olli Rehn had raised legal concerns since December 2011, Hungary has now promised to change its legislation and provided additional commitments and clarifications which settle the issues raised by the Commission. Provided Hungary follows through on the measures it has communicated, the Commission is prepared to close this case once the legislation is adopted, as such amendments would remove the provisions of Hungarian law that were incompatible with the independence requirements of the EU Treaties (Article 130 TFEU and Article 14 of the Statute of the European System of Central Banks and of the ECB).]
2) Independence of the data protection authority
Vice-President Viviane Reding, the EU Justice Commissioner, raised legal concerns as regards the independence of the Hungarian data protection authority in December 2011, and infringement proceedings were started on this matter on 17 January 2012 (IP/12/24). Under the EU’s Data Protection Directive (Directive 95/46/EC), Member States have to establish a supervisory body, which acts in complete independence, to monitor the application of the Directive. The independence of data protection authorities is also explicitly required by Article 16 TFEU and Article 8 of the EU Charter of Fundamental Rights.
Hungary has addressed the Commission’s concerns partly by amending its national legislation on 3 April 2012 to make the new National Agency for Data Protection (which replaced the previous Data Protection Commissioner’s Office as of 1 January 2012) independent in line with EU law. In this respect, the Commission could decide today to drop some of its concerns in this case.
However, with the creation of the National Agency for Data Protection, Hungary had at the same time ended prematurely the six-year term of the former Hungarian Data Protection Commissioner, who was appointed in September 2008 and whose term of office would have ended in September 2014 only. The personal independence of a national data protection supervisor, which includes protection against removal from office during the term of office, is a key requirement of EU law. The re-organisation of a national data protection authority is not a reason for departing from this requirement. This is why the Commission, on a proposal from Vice-President Reding, decided today to bring the matter to the Court of Justice. In the view of the Commission, Hungary violated the independence of the supervisory authority by ending the term of office of the Data Protection Commissioner two years and 9 months earlier than foreseen by law.
3) Measure affecting the independence of the judiciary
Since December 2011, the Commission also raised serious legal concerns regarding measures taken by Hungary under its new Constitution which affect the judiciary.
(i) Sudden reduction of the retirement age of judges, prosecutors and notaries from 70 to 62 years
A very concrete legal concern of the Commission concerns Hungary’s decision to reduce the retirement age of judges, prosecutors and notaries from 70 to 62 years. If implemented, this measure would lead to the early retirement of 236 judges in 2012 alone (this would mean retiring nearly 10% of all judges within just one year). Approximately 25% of public notaries would also be affected.
In line with established case law of the Court of Justice, the Commission has checked the legality of the Hungarian measures on the basis of EU rules on equal treatment in employment (Directive 2000/78/EC), which prohibit discrimination at the workplace on grounds of age. These rules also cover changes to the mandatory retirement age for one profession without an objective justification.
Following the Commission’s reasoned opinion in March, Hungary did not provide an objective or coherent justification for its measures. On a proposal of EU Justice Commissioner Reding, the Commission has therefore decided today to bring the case before the European Court of Justice.
In view of the urgency of the matter and the imminent retirement of 236 judges, the Commission will ask the Court to deal with this aspect in an expedited procedure. The Commission also calls on the Hungarian authorities to suspend application of the contested law as long as proceedings at the Court of Justice of the European Union are ongoing, in order to avoid further follow-on litigation at national level and action for damages by the persons concerned
(ii) Independence of the judiciary
The Commission continues to have concerns about the independence of the judiciary in Hungary more generally and in particular on two essential aspects: the powers attributed to the President of the National Judicial Office to designate a court in a given case, and the possibility of a transfer of judges without their consent.
The Commission is concerned that these measures could affect the effective application of Union law in Hungary and the fundamental rights of citizens and businesses to an effective remedy by an independent court in Union law cases, as guaranteed by Article 47 of the EU Charter of Fundamental Rights.
The Commission notes that there are ongoing discussions between the Hungarian authorities and the Council of Europe and its Venice Commission (which issued an opinion on the matter on 19 March 2012). Furthermore, amendments to the legislation on the administration of justice are currently under discussion in the Hungarian Parliament.
The Commission will keep the matter under close review to verify compliance with the right to an effective remedy guaranteed by Article 47 of the EU Charter of Fundamental Rights in Union law cases, and will take into account whether the amendments will be implemented in line with the Venice Commission’s opinions.
Vice-President Reding will convene before the summer a meeting with the Network of the Presidents of the Supreme Judicial Courts of the European Union to which the Hungarian Minister of Justice, the President of the National Judicial Office, the President of the National Judicial Council and judges of the Hungarian Constitutional and Supreme Courts will be invited to explain the current situation of the Hungarian judiciary.
The Commission reserves the right to launch infringement proceedings also on this matter in case it should not be satisfied that EU law will be applied effectively by independent courts in Hungary in line with the requirements of EU law. Here to read more.