European Union / Hungary: Criticism of Laws on the Judiciary, Data Protection, and the National Bank
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(Jan 23, 2012) On January 17, 2012, President Jose Manuel Barroso of the European Commission (EC) announced the initiation of legal action against Hungary by means of three Letters of Formal Notice, regarding three issues in new Hungarian legislation effective at the beginning of this year under the country's 2011 Constitution (Fundamental Law of Hungary (Apr. 25, 2011), KORMÁNY PORTÁL [Hungarian government website]). The new Constitution itself has been the subject of controversy, even within Hungary; protestors gathered in the capital on January 1 of this year to express their belief that the document gives the government too much power. (Brandon Gatto, European Commission to Challenge Hungary Laws, PAPER CHASE NEWSBURST (Jan. 17, 2012).)
Following a detailed evaluation of the new laws, the Commission concluded that the provisions were in conflict with European Union (EU) law; they concern the judiciary, the independence of Hungary's central bank, and data protection authorities. (Press Release, European Commission Launches Accelerated Infringement Proceedings Against Hungary over the Independence of Its Central Bank and Data Protection Authorities as well as over Measures Affecting the Judiciary (Jan. 17, 2012), EUROPA.)
The EC has put the matter on an "accelerated" basis, meaning that Hungary will have just one month, a shorter time span than is usually given, to reply to the Letters. Hungarian Prime Minister Viktor Orban will be visiting Brussels soon and will be discussing the issues with Barroso. (Update - EU to Launch Three Infringement Proceedings Against Hungary, BUDAPEST BUSINESS JOURNAL (Jan. 17, 2012).) Orban has said of the EC criticisms that Hungary's "general approach is that we are open and flexible, we are ready to negotiate all the points but what we need is not political opinion but arguments." (Gatto, supra.)
The EC challenges are concerned with these three areas:
The EC questioned Hungary's decision to lower the mandatory retirement age from 70 to 62 for all judges, prosecutors, and public notaries, as of January 1, 2012. Sixty-two is the general age for workers to become eligible for pensions in the country. Age discrimination in the workplace is prohibited under EU rules on employment (Directive 2000/78/EC of 27 November 2000, Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 OFFICIAL JOURNAL OF THE EUROPEAN UNION (O.J.) (L303) 16-22, available at EURLEX). In order to change the age for mandatory retirement for one group of employees and not others, there must be a strong justification. In this case, the EC has not determined that there is such a justification for reducing the retirement age for these workers in the judicial system. In fact, Hungary has already announced it will be raising the general retirement age to 65. (Press Release, supra.)
In addition, the EC is requesting that Hungary provide more information on recent legislation on the organization of the courts in the country. Hungarian law has concentrated authority over the operational management of the courts, including human resources decisions such as judicial appointments, budgets, and the allocation of cases, in the president of a new institution, the National Judicial Office. This move has changed the collective nature of some decision making that had previously been in place. (Press Release, supra.)
National Central Bank
The EC is concerned that under the new Magyar Nemzeti Bank [MNB] Law [National Bank of Hungary Law] and the Constitution, the independence of the national bank, something required under EU law, is in doubt. Among the matters of concern is the provision of the MNB Law that permits a government minister to take part in the meetings of the Monetary Council, which gives the government influence over the MNB. In addition, the agenda of MNB meetings must be sent to the government; this provision blocks the ability of the MNB to hold confidential discussions. Other issues raised by the EC are the structure of the institutions involved and their employment and remuneration rules. (Id.)
Hungary recently decided to establish the National Agency for Data Protection (NADP), which replaced the former Data Protection Commission on January 1, 2012. The term of the incumbent Data Protection Commissioner, appointed for six years in 2008, was thereby cut short. Under the new rules governing the NADP, it is possible that the head of the new agency could be arbitrarily dismissed by either the President or the Prime Minister. The EC is concerned about this possibility because the independence of those in charge of data protection is guaranteed under the Treaty on the Functioning of the European Union (2010 O.J. (C83) 49-199, available at EURLEX) and the Charter of Fundamental Rights of the European Union (2000 O.J. (C364) 1-22, available at EURLEX). In its statement, the EC cited both of those documents as well as the EU rules on data protection, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (1995 O.J. (L281) 31-50, available at EURLEX). (Press Release, supra.) The Directive specifies that each Member State must establish a supervisory body to monitor implementation of data protection requirements and that this body must have complete independence in exercising its functions. (Id.)
- Author: Constance Johnson More by this author
- Topic: Constitutional law More on this topic
- Jurisdiction: European Union / Hungary More about this jurisdiction
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Last updated: 01/23/2012