Lowering retirement age Hungarian judges unjustified discrimination
>> By this application, the European Commission sought a
declaration from the Court that, by adopting a national scheme requiring the
compulsory retirement of judges, prosecutors and notaries on reaching the age
of 62 – which gave rise to a difference in treatment on grounds of age which
was not justified by legitimate objectives and which, in any event, was not
appropriate or necessary as regards the objectives pursued – Hungary had failed
to fulfil its obligations under Arts 2 and 6(1) of the Employment Equality Framework Directive (Directive 2000/78, picture: Hungarian Parliament)
The Court reiterated that under Art. 2(1) of Directive 2000/78, “the
“principle of equal treatment” should mean that there should be no direct or
indirect discrimination on any of the grounds referred to in Art. 1 of that
directive. Article 2(2)(a) of that directive stated that, for the purposes of
the application of Art. 2(1), direct discrimination was to be taken to occur
where one person was treated less favourably than another in a comparable situation,
on any of the grounds referred to in Art. 1 of that directive (Case C‑447/09 Prigge and Others [2011])
The Court held that the disputed national measures, pursuant to
which the fact that a worker had reached the retirement age laid down by that legislation
lead to automatic termination of his employment contract, had to be regarded as
directly imposing less favourable treatment of workers who had reached that age
as compared with all other persons in the labour force. Such legislation
therefore established a difference in treatment directly based on age, as
referred to in Art. 2(1) and (2)(a) of Directive 2000/78 (see, to that effect,
Case C‑411/05 Palacios
de la Villa [2007]).
Hungary claimed that it had lowered the age-limit for compulsory
retirement in order to redress a situation of positive discrimination in favour
of judges, prosecutors and notaries under the scheme previously in force, in so
far as they, unlike other public sector employees, could remain in their posts
until the age of 70.
The Court however held that such a fact was not, however, capable of
calling into question the existence of a difference in treatment between persons
compulsorily obliged to retire because they had reached the age of 62 and those
who, having not yet reached that age, might remain in their post. The difference
in treatment on grounds of age was based on the very existence of an age-limit
above which the persons concerned must retire, regardless of the age fixed for
that limit and, a fortiori, for the previously applicable limit.
The Court added, however, that according to the first subparagraph
of Art. 6(1) of Directive 2000/78 a difference in treatment based on age did
not constitute discrimination if, within the context of national law, it was objectively
and reasonably justified by a legitimate aim and where the means of achieving
that aim were appropriate and necessary (see: Case C‑141/11 Hörnfeldt (2012).
Hungary invoked, essentially, two objectives ostensibly pursued by
the legislation at issue, that was to say, primarily, the standardisation of
the rules relating to retirement for all persons and, secondarily, the facilitation
of the entry of young lawyers into the judicial system with a view to
establishing a “balanced age structure”.
The Court reiterated as regards the aim of establishing
a more balanced age structure facilitating access for young lawyers to the
professions of judge, prosecutor and notary the aim of establishing an age
structure that balances young and older civil servants in order to encourage
the recruitment and promotion of young people, to improve personnel management
and thereby to prevent possible disputes concerning employees” fitness to work
beyond a certain age, while at the same time seeking to provide a high-quality
justice service, could constitute a legitimate aim of employment and labour
market policy (Joined Cases C‑159/10 and C‑160/10 Fuchs and Köhler [2011).
The Court however added that while it was clear from the foregoing
that the contested provisions were justified by legitimate aims, it was still
necessary, finally, to establish whether the national provisions at issue were an
appropriate and necessary means of achieving those two aims.
The Court held that in order to examine whether the provisions at
issue went beyond what was necessary for achieving that objective and unduly
prejudice the interests of the persons concerned, those provisions must be
viewed against their legislative background and account must be taken both of
the hardship they might cause to the persons concerned and of the benefits derived
from them by society in general and the individuals who made up society (Case C‑45/09 Rosenbladt [2010]).
As regards the first aim, the relevant provisions were, according to
the Court in principle, an appropriate means of achieving the aim of
standardisation pursued by Hungary, in that they were designed precisely, if
not to eliminate, at least to reduce significantly the diversity of the
age-limits for compulsory retirement for all the professions attached to the
public justice service.
The Court however added that it still remained to establish whether
those provisions also constituted a necessary means to those ends.
The Court reiterated that in order to examine whether the provisions
at issue go beyond what was necessary for achieving that objective and unduly
prejudiced the interests of the persons concerned, those provisions must be
viewed against their legislative background and account must be taken both of
the hardship they might cause to the persons concerned and of the benefits derived
from them by society in general and the individuals who made up society (Case C‑45/09 Rosenbladt [2010]). The Court found that the provisions at
issue were not necessary to achieve the objective of standardisation invoked by
Hungary.
As regards the second objective purporting to establish a more
balanced age structure facilitating access for young lawyers to the professions
of judge, prosecutor and notary and guaranteeing them an accelerated career, the
Court also found that the provisions at issue were not appropriate to achieve
the objective of establishing a more balanced “age structure’.
In those circumstances, the Court found that the contested national
provisions gave rise to a difference in treatment which did not complied with
the principle of proportionality and that, therefore, the Commission’s action
must be upheld.
The Court thus concluded that, by adopting a national scheme
requiring compulsory retirement of judges, prosecutors and notaries when they
reach the age of 62 – which gave rise to a difference in treatment on grounds
of age which was not proportionate as regards the objectives pursued – Hungary
had failed to fulfil its obligations under Arts 2 and 6(1) of Directive
2000/78.
