The Action argues that adopting national legislation in Hungary which provides for the compulsory termination of the term of office of judges, prosecutors and notaries public at the age of 62 constitutes a case of difference of treatment on grounds of age. We agree with this point. We are convinced that there exist other dimensions which also need to be examined in the present case of difference of treatment.
1. Difference of treatment is rendered particularly weighty in the present case by the fact that the national legislation disputed by the Action, which constitutes a case of difference of treatment offensive against European law, affects categories of professionals working in the justice system and even in that category only some sections are affected while others are not.
Contrary to the claim of the Hungarian Government, the purpose of early retirement is not ’to put an end to unfair discrimination as against employees of other sectors’ or to introduce legislation neutral to sector in terms of legal consequences of the differences in the age of retirement’. There are several examples both as regards the different categories of the legal professions and among offices related to the direct practice of public power where reaching the general age of retirement does not entail compulsory termination of office. Thus, for instance, the head of the Curia, the judges of the Constitutional Court, officials employed in service of the government and professors of universities of law are allowed to practise their profession until the age of 70, while attorneys at law may practise indefinitely. It must be noticed that provision of a compulsory retirement age for judges, prosecutors and notaries public affects only those professional categories whose representatives are directly involved in the practice of the system of jurisdiction. This peculiarity of regulation, however, instead of justifying the different treatment of judges, prosecutors and notaries public on grounds of age, renders the situation only graver. The genuine motivation in the background of this national legislation, which is different from the explanation offered by the Hungarian Government, is indicated by the fact that it constitutes discrimination against professions directly involved in practicing the state’s function as a source of jurisdiction – the aim of such discrimination being to remove from their position persons working in a partially or fully independent legal status and replacing them by appointing new persons to their posts. Such an aim of discrimination does not justify difference of treatment with regard to these professionals either on constitutional grounds or according to EU legislation.
Forced retirement of notaries public, owing to the peculiarities of recruitment in this professional category, also gives rise to the special problem of equal treatment. The reason for this is that forced retirement affects nearly one third of the present rank of notaries public, a category with a fixed number of members regulated on the basis of compulsory membership in the Chamber of Notaries Public. According to the relevant legislation, notaries public must fulfil their office in an unbiased manner also in the political sense. The places of notaries public affected by forced retirement will be replaced by new professionals applying on a competitive basis to be selected and appointed after the personal deliberation of the relevant government minister who is a party politician. This may alter the character of this professional category in a way which makes it possible for political considerations to gain ground and thus may give rise to the offence of difference of treatment.
2. Extending compulsory retirement from judges and later prosecutors to notaries public cannot cover up the unlawfulness of difference of treatment, on the contrary, highlights its illegal nature.
The various key dates of Hungarian legislation in 2011 do not reflect the existence of a plan of introducing a retirement age which is neutral to sectors – quite the contrary, the sequential nature of various legislative events and the public and legal debates surrounding them seem to show that legislation was extended to notaries public at a later date to render less obvious the difference of treatment identified by the European Commission.
Lowering the retirement age of judges and rendering retirement compulsory appeared within the Hungarian legal system in the Basic Law of Hungary [article 26 paragraph (2)], ‘except for the president of the Curia, the term of service of judges exists until they reach the general age of retirement’. This rule was accepted by Parliament on 18th April 2011. The rule about the legal status and payment of judges was executed by Act CLXII of 2011 which was accepted by Parliament on November 28th 2011. On the same day Parliament accepted the law which lowers the age of compulsory retirement for prosecutors (Act CLXIV of 2011 on the legal status of the Chief Prosecutor, prosecutors and other employees of prosecution and on the career path of prosecutors). In her letter of December 12th 2011, Vice President of the European Commission Viviane Reding expressed her disapproval regarding the new legislation on the retirement age of judges. The legal document entitled ‘Temporary Regulations of the Basic Law of Hungary’ accepted on December 30th 2012 already contained a regulation which, at least according to the intention of the legislator, provided for reducing the term of service of notaries public. [Article 12 paragraph (2): ‘As long as, according to article 25 paragraph (6) of the Constitution there is a legal possibility for persons appointed by the autonomous decision of a Government member to act as agents of justice outside of legal proceedings, rules of article 26 paragraph (2) of the Constitution on the highest possible age of retirement apply also to such persons as of January 1st 2014. A further article (article 13) contained a rule regarding the age of retirement with regard to prosecutors. An amendment to the law on the legal status of notaries public was accepted by Parliament on December 30th 2011 which reduced the previous limit of 70 years of age to the general age of retirement with effect as of 2014 (Act CCI of 2011).
If we consider the individual dates of the legislation process, the picture which emerges reveals not so much a notion of regulation neutral to sector – instead, the practice of extending the regulations of retirement age to further and further professional categories is driven by the intention to evade criticism about discrimination which emerged in the wake of amendments affecting judges.
3. As a consequence of Ruling No. 33/2012 (July 17) of the Constitutional Court on waiving the legislation which terminates the employment of judges after reaching the general age of retirement, the negative discrimination against notaries public and prosecutors became only more apparent.
As the European Commission claims, and we, too, have demonstrated, judges, prosecutors and notaries public cannot be considered an independent homogenous group from the point of view of equal treatment. Nevertheless, in consequence of the ruling of the Constitutional Court, judges have been at least temporarily removed from the range of persons affected, thus that range is even narrower than before, applying according to current regulation only to prosecutors and notaries public. This renders the fact of unfair treatment which offends against European law even more apparent than before, since the argument of ‘neutrality to sector’, claimed by the Government, could not be supported even if the government strove to create neutrality among these three professional categories. At the same time, it is far from certain that the government will actually execute the ruling of the Constitutional Court regarding the forced retirement of judges. After the ruling of the Constitutional Court which declared the forced retirement of judges constitutionally offensive, the first public statement of the Minister of Justice speaking in the name of the government divulged the government’s plans to create legislation which would legally preserve and sustain the forced retirement of judges which offends against the principle of equal treatment. The kind of practice followed by the governing majority is also indicated by the fact that in the meantime, regardless of legal debates currently underway in Hungary and in the EU, most of the posts of judges who had been forced to retire have been rapidly filled by appointing new judges to these offices.
László Majtényi DSc
Máté Dániel Szabó PhD