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God save the Hungarians (III): the EU’s crusade against Hungary likely to end in defeat and ridicule?
Posted on | January 25, 2012 by J.C. von Krempach, J.D. |
Last week, Hungarian Prime Minister Viktor Orban appeared before the European Parliament’s plenary session (watch the full debate here) to defend his government’s value-oriented reform policy against leftist/liberal/green/communist assailants. …More
God save the Hungarians (III): the EU’s crusade against Hungary likely to end in defeat and ridicule?

Posted on | January 25, 2012 by J.C. von Krempach, J.D. |
Last week, Hungarian Prime Minister Viktor Orban appeared before the European Parliament’s plenary session (watch the full debate here) to defend his government’s value-oriented reform policy against leftist/liberal/green/communist assailants.
While Orban remained calm and spoke to the point, some of his opponents were visibly not able to control themselves. When asked by conservative MEPs to add some substance to their allegations and to explain more precisely when and where Hungary had violated fundamental EU provisions, former Belgian Prime Minister Guy Verhofstadt exploded in helpless rage (see at 15:47:26 on the video), yelling that the problem was not “that or that article, but the whole philosophy behind the operation of what is happening at the moment”.
Here, at the latest, it became quite clear that what is going on at this moment is a crusade of left-wing and liberal politicians against a government that they fear will not share their cultural agenda.
The allegations about Hungary having violated EU law seem to be nothing than a mere pretext in this debate.
After weeks of loud-mouthed drumbeating in the media, where it announced that it would “call Hungary to order”, the Commission seems to have been desperately looking for some issues on which it could base formal legal procedures against Hungary. What it has come up with is less than convincing. As one can read in a press release published by the Commission some days ago, those issues relate to “the independence of its central bank and data protection authorities as well as over measures affecting the judiciary”.
Sources within the Commission’s own Legal Service (who prefer not to be identified) have expressed their serious concern over the apparent lack of foundation of the procedures tha Commission is intending to launch. “We are discussing this here among colleagues, but nobody of us understands what might be the legal basis for those allegations against Hungary. It’s a complete mystery”, one legal expert said.
However that may be, it should be clear that issues related to the independence of a country’s central bank and data protection authorities, even if ultimately a violation of Community Law is found, can hardly justify that that country is “turning away from democratic values”. In actual fact, these seem to be rather technical issues, and it should be reminded that the Commission opens hundreds and hundreds of similar proceedings against all Member States every year, without anyone affirming that those countries are turning their back on human rights and democracy. Thus, it would seem advisable to tune the rhetorics down a little bit, and return to normal business…
But let us nevertheless briefly look at the third issue on which the Commission wants to launch proceedings against Hungary. As we read in the Commission’s press release, it is about “the independence of the judiciary” (nothing less!).

The infringement case affecting the judiciary focuses on the new retirement age for judges and prosecutors and relates to Hungary’s decision to lower the mandatory retirement age for judges, prosecutors and public notaries from 70 years to the general pensionable age (62 years) as of 1 January 2012.
EU rules on equal treatment in employment (Directive 2000/78) prohibit discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification is needed if a government decides to reduce the retirement age for one group of people and not for others. This principle was affirmed when the Court ruled that prohibiting airline pilots from working after the age of 60 constitutes discrimination on grounds of age.
In Hungary’s case, the Commission has not found any objective justification for treating judges and prosecutors differently than other groups, notably at a time when retirement ages across Europe are being progressively increased and not lowered. The situation is even more legally questionable because the government has already communicated to the Commission that it intends to raise the general retirement age to 65.
To be honest, the Hungarians would be very stupid not to wait seeing this case go to the European Court of Justice: the reasoning is so patently absurd that the Commission can hardly hope to win the battle.
First and foremost, it is grotesque to assume that a law assimilating the retirement age for one particular group to that of the rest of society should be ‘discriminatory’. In reality, it sets an end to discrimination.
Secondly, it is difficult to understand how a law that lowers a mandatory age for retirement can be “discrimination on grounds of age”. It is in the nature of retirement pensions that older people receive them, whereas younger people don’t. And if it is discriminatory to cut off professional careers by fixing a mandatory retirement age, then it must be completely irrelevant whether that age is set at 62 or 70 years, the one being as arbitrary as the other.
Maybe someone should tell the Commission that laws setting a mandatory retirement age exist in all Member States – not only for judges, but for civil servants in general. If fixing a mandatory retirement age violates Directive 2000/78, then the Commission must first change the Statute of its own officials (which currently foresees compulsory retirement at age 63), and then initiate infringement procedures against all Member States, not only against Hungary.
But the Commission’s argument is that “an objective and proportionate justification is needed” – and apparently was not provided by the Hungarian Government – “if a government decides to reduce the retirement age for one group of people and not for others”. In other words, all of a sudden the argument is not any more that the measure discriminates on grounds of age but that it is between different professions: judges and prosecutors should not be treated differently than other groups. But that’s precisely what the controversial law is doing: it aligns the retirement age of judges and prosecutors to that of other groups. So what on earth is wrong with it???
Maybe what the Commission means to say is that if the retirement age for judges is reduced by eight years, then the retirement age for everyone else must be reduced in the same way, bringing the general retirement age down to 54 years? That would, however, be a strange way of interpreting the Equality Directive: it would mean that the Directive’s purpose was to prevent equality and preserve difference in treatment…
In addition, being a judge purely and simply isn’t one of the ‘suspicious grounds’ recognized by the Directive, which prohibits discrimination “on the grounds of religion or belief, disability, age or sexual orientation”. The Directive thus does not seem to prohibit different retirement ages for different professions.
Maybe what has raised the Commission’s concern is that for persons employed in the private sector the retirement age is not compulsory, whereas it is compulsory for judges and prosecutors (and, indeed, for civil servants in general). But there is an important difference between civil servants and persons employed in the private sector: while an employee in a private firm would lose his job once he is no more capable of delivering proper work, judges and civil servants generally are protected against being fired, so that they might cling to their posts until they are 100 years old. This is precisely the reason why a mandatory retirement age is needed in the public sector, whereas it is not needed in the private sector. Hence, even if the Directive does explicitly mention age as a ‘suspicious ground’ for discrimination, it seems absurd to say that it prevents Member States from setting a mandatory retirement age for civil servants.
If an argument relating to “discrimination” must be made at all costs, then the Commission might have to build its case on the concept of ‘indirect’ rather than ‘direct’ discrimination: it could argue that the law, despite seemingly being the same for all, puts at a disadvantage a particular group of judges, namely those having started their careers under the auspices of communism. But that would of course require the Commission to openly admit that the ‘victims’ it seeks to protect against ‘discrimination’ are in fact the old ex-Communists, who still occupy many key posts in the Hungarian judiciary system…
One thing is clear: the judges affected by the Government’s measure (i.e. those aged between 62 and 70 today) mostly have started their careers before 1989, and have been selected, trained, and appointed, at a time when absolute loyalty to the Communist Party was a primordial requirement for anyone wishing to work as a judge. Is it really so wrong for Hungary to accelerate the transition from Communism to democracy? And is it realy a legitimate policy objective for the EU’s élites to prevent this transition from taking place??
Anti-Discrimination laws, it appears, can be put to a strange use…

www.turtlebayandbeyond.org/…/god-save-the-hu…