ISSN Made in: Kurrens Print Ltd., Budapest Budapest Responsible leader: Péter Réti managing director

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2 ISSN Made in: Kurrens Print Ltd., Budapest Budapest Responsible leader: Péter Réti managing director

3 Report of the activity of the Equal Treatment Authority in 2010 and on application of Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities 2011

4 Contents I. Summary 2 II. Our discrimination cases 4 II.1. Employment 4 II Cases related to establishing an employment relationship 8 II.1.2. Discrimination during the employment relationship 11 II.1.3. Cases related to termination of employment 27 II.2. Distribution of goods and provision of services 28 II.2.1. Financial services 29 II.2.2 Failure to comply with the obligation to ensure accessibility 32 II.2.3. Telecommunication services 36 II.2.4. Services offered by stores and catering establishments 37 II.3. Education 43 II.4. Health services 48 II. 5. Discrimination in other areas 51 II.5.1. Cases concerning the functioning of local governments and their organs 51 II.5.2. Guardianship cases 56 II.5.3. Complaints against other obligated parties 57 III. Arrangements and friendly settlements 61 IV. Informational activities 66 V. Cases concluded with judicial review 68 VI. International relations 71 VII. Results of the TÁMOP project 77 VIII in numbers 82 Equal Treatment Authority 2

5 I. Summary In 2010, private individuals, organizations and representatives of employers requested information and legal assistance from the Equal Treatment Authority (hereinafter: the Authority) in about cases. Among the nearly complaints, the Authority launched proceedings in 377 cases last year, out of which in 40 it established that a violation of rights had occurred, and 244 cases are continuing in Similarly to previous years, the right of complainants to equal treatment was violated most in the field of employment, in most cases because of a protected characteristic like motherhood, belonging to a trade union or due to another characteristic of the complainant. Within the scope of rights infringements as established by the Authority, according to types of discrimination, the Authority established that there had been direct discrimination in 36 cases, harassment in 6 cases, and 1 case each of indirect negative discrimination, unlawful segregation and retribution. Most law violations were related to business organisations in other cases sanctions were brought against local governments, institutions and state organs. Last year, the Authority imposed fines amounting to HUF 20,300,000. The Authority established that discrimination had occurred in relation to provision of services in 11 cases based on the age, ethnic origin, disability, nationality, skin colour, health condition or another characteristic of the complainant i.e. because of their so-called protected characteristic. Among applications, due to their being outside the competence of the Authority, nearly 100 cases were forwarded to organisations with other areas of responsibility and scopes of authority for them to handle the case and respond. The number of applications that do not complain of discrimination continues to be high; in these cases, the Authority tried to give professional and easily understandable replies to citizens regarding their problems and possibilities for enforcing their claims. As a response to such applications, the Authority sent out nearly 600 information letters. It is a welcome fact that the number of arrangements or friendly settlements between the parties approved by the Authority increased in comparison to previous years. While in 2009, 18 arrangements or friendly settlements were reached by parties in procedures conducted by the Authority, this number increased to 36 in The increasing number of cases under investigation indicates that citizens are getting more familiar with the activity of the Authority. In this context, we consider it preferable that instead of applying rigorous punitive sanctions, an approach is applied which is client-centred and based on seeking an arrangement or friendly settlement between the parties. Partly for this reason, the Authority considers it extremely important to explore opportunities for mediation in its procedures, as well as to provide effective, task-oriented, professional intervention that results in real and long-term solution for the parties. The Authority rejected the complaint in 148 cases, mostly because the subject of the procedure was able to verify that they did not discriminate in favour of those in a situation similar to that of the complainant, or they gave a legal justification for the different treatment. Last year, complainants contacted the lawyers of the national network of equal treatment experts set up under the TÁMOP project Combating Discrimination Shaping Societal Attitudes and Strengthening the Work of the Authority. In the framework of the project, which was/is funded by the European Union (EU), last autumn, the Authority having become an accredited adult education institution launched its educational activities. The self-developed training courses, which provide a certificate, are aimed at the sensitisation 3 Equal Treatment Authority

6 and social attitude formation of the participants, as well as at increasing their legal knowledge. By the end of the year, 152 persons completed the Authority s free, three-day training program. The nation-wide mobile exhibition of the Authority was also launched in September 2010 with the title Live from the playground. Those interested in equal treatment and equal opportunities can see artwork and short novels submitted by primary and secondary school students for contests of the Young people against discrimination program. Within the framework of the project, the Authority launched research programs aimed at mapping discrimination occurring in the areas of labour and access to public services, through which we continuously monitor discrimination in Hungary. In addition to investigating mechanisms of discrimination, our seven research programs also research the public s rights awareness. Similarly to previous years, the Authority considered it to be one of its key tasks to inform the public. In addition to publishing its decisions on its website, it regularly put up brief summaries of the most typical cases. Due partly to this, the Authority received special attention from the media. II. Our discrimination cases II.1. Employment Several years of experience with the Authority s work show that the vast majority of complaints received are related to labour. Complainants who disagree with a decision made by their employer seek help from, and the initiation of proceedings by the Authority, claiming discrimination, in many cases even in the absence of a protected characteristic. The petitions received show that complainants rights are violated primarily when it comes to accessing work, job interviews, as well as the termination of employment or another legal relationship related to employment. In more than half of the 40 decisions in which the Authority established a violation of the law, it established employment-related discrimination. While in the previous year the most common characteristics were age and sex, last year the main basis for violating the requirement of equal treatment was motherhood as a characteristic. While the experience of the past years shows that discrimination in the labour market affects mainly Roma, in terms of last year s cases it can be seen that discrimination based on Roma origin could only be established in one case. Another difference compared to previous years is that, while previously we hadn t established any infringements based on sexual orientation, and we received only a very small amount of complaints concerning such cases, last year we condemned employers in two cases in relation to harassment connected to sexual orientation. The practical application of the position of the Equal Treatment Advisory Body 1 regarding the interpretation of any other status made the application of law by the Authority more uniform and limited, the result of which was that no decision establishing discrimination based on any other status was adopted in the field of employment. In the course of analysing the behaviour of employers that were the subject of complaints submitted to the Authority, abuses of the law could be established. For these reasons, the Authority dismissed a significant number of applications, advising the complainant that they can enforce their claim against the employer in a labour lawsuit. The Authority established direct discrimination in 15 cases, retribution in 1 case and harassment in 4 cases. 1 Position No. 288/2/2010. (IV.9.) TT. Equal Treatment Authority 4

7 As concerns the sectoral breakdown of employers, it can be established that over half of the violations were committed by employers in the private sector, and the Authority established just one violation committed by a state organ. Regarding the applied sanctions, about half of the fines imposed by the Authority (HUF 14,400,000) were imposed on employers. About 80% of decisions refusing the complaint were issued in relation with employment. The main reasons for refusal were that the lack of characteristic as given by the complainant, as well as the lack of connection between the rights violation and the characteristic. Based on the rules of evidence as set out in Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities (hereinafter: Equal Treatment Act), employers shall not be considered as having violated the requirement of equal treatment by if strict conditions are met. 2 When analysing the special rule of justification, the primary question is how does the sector-specific justification within the field of employment relate to the general rules of exculpation as set out in Article 7 (2) of the Equal Treatment Act: can they be applied simultaneously, or is reference to the general justification in proceedings related to labour-related discrimination excluded by the principle of lex specialis derogat legi generali. In our opinion, the latter approach is correct, since if we consider the general justification as something which can be used in a complementary manner alongside the specific justification, then the existence of the special rule is virtually unnecessary. If the person violating the requirement of equal treatment can excuse their act of discrimination based on the very simple and low-threshold test of objective consideration, why would he try to prove the considerably more difficult to prove fact that his behaviour was justified because of the type or nature of the job and can be considered proportionate based on all significant and legal assumptions that can be taken into account in relation with the employment? Proving this requires that many more factors are taken into account, therefore presumably all employers would rely on the general justification, in which case the special justification would become completely unnecessary and the provision would become hollow. Accordingly, if a procedure is launched concerning legal relations as specified in Articles 5 and 21 because of an infringement of the requirement of equal treatment, the defendant (or the subject of the procedure) cannot refer to the justification set out in Article 7 Paragraph (2), but only to one of the reasons set out in Article In the course of investigating the applications received in relation to employment, in many cases the Authority has to distinguish between complaints concerning solely labour law and workplace practices which violate the principle of equal treatment. There are cases when the behaviour in question does not constitute harassment despite the complainant experiencing it as having been offensive, hurtful or degrading. One reasons for this is that the complainant does not possess one of the protected characteristics, or no connection can be established between the characteristic they are referring to and the wrong suffered. For example, a complaint submitted by a facility operator who was employed by a limited liability company was dismissed because it could not be proven that he/she was forced to 2 Article 22: The principle of equal treatment shall not be considered violated if the discrimination is proportional, justified by the characteristics or nature of the work and is based on all relevant and legitimate terms and conditions considered during the hiring, or the discrimination arises directly from a religious or other ideological conviction or national or ethnic origin fundamentally determining the nature of the organisation, and it is proportional and justified by the nature of the employment activity or the conditions of its pursuit. 3 Source: Explanation of Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities. Authors: Dr. Kárpáti József, Dr. Bihary László, Kádár András Kristóf, Dr. Farkas Lilla Equal Treatment Authority

8 perform his/her work in a degrading, hostile or aggressive environment because of his/her ethnicity. In the opinion of the Authority, the workplace attacks claimed by the complainant could not be linked to his/her ethnic origin. The practices which were the subject of the complaint were the way that the complainant s work was valued, the in his/her opinion unreasonable assigning of tasks, the unsuitability of working tools and the differences in opinion and arguments related to being instructed to wear work clothes. In its judgment of the case, the Authority relied on the position of the Advisory Body 4, which states that debating problems related to work and demanding improvement cannot be considered harassment if they concern the way in which the person concerned is carrying out their work and not the person themselves, and if the manner in which this is done does not harm their human dignity. The Authority found that the workplace wrongs and insults claimed by the complainant were related purely to labour rights, and they arose from the hierarchical nature of the work and the exercising of partial rights related to instruction, monitoring and management. It also could not be proven beyond any doubt that the employer violated the human dignity of the complainant or treated him/her in a degrading manner, since he/she managed and supervised the employee s work in line with the Labour Code, just as he/she did with other employees. 5 4 Position No. 384/5/2008. (IV.10.) TT on the concept of harassment and sexual harrasment. 5 Case No. 710/2010 Equal Treatment Authority 6

9 7 Equal Treatment Authority

10 Job advertisements II Cases related to establishing an employment relationship Until the adoption of the Equal Treatment Act, the realisation of equal access to employment was virtually unsolved in cases where the discrimination did not happen during the employment itself, but when through the wording of the job advertisements applicants with so-called protected characteristics were excluded from even applying. The publication of job advertisements, as well as their content, can be considered to be procedures that are directly related to the establishment of employment, i.e. the principles of labour rights, in particular that of proper exercising of rights and of equal treatment, also apply to them. In addition, the specific rules of the Equal Treatment Act include the obligation to adhere to the requirement of equal treatment, in other words this has to be observed also in the procedures related to the employment relationship and in procedures preceding it. As pointed out several times by the Constitutional Court in its decisions, the subjective right to work means the right to free choice of work and occupation 6. At the same time, no one possesses the subjective right to have a specific occupation. The main point of the above-mentioned principle which the Authority also follows in its application of law is that the advertiser should not hinder or prevent someone from applying for a position by including unjustified and illegal employment conditions. The experience gathered in 2010 is consistent in the sense that the most frequently applied preconditions of employment were related to age, sex and external physical attributes. For instance, it is unjustified to demand that a shop assistant be female or young, and in the case of a broker position, it cannot be explained by the type and nature of the position that the requirement is that the applicant be a male and between 18 and 30 years old. The conditions referred to concern a not exactly specified group of job seekers and exclude them from the opportunity of applying for the job on the basis of attributes that can be considered the key attribute of their personalities. With regard to this, it was also the case in 2010 that a considerable percentage of the proceedings launched in relation with job ads were initiated by social and interest protection organisations which include in their by-laws the protection of some fundamental right. All this does not exclude that applicants whose job applications were rejected directly exercised their right of lodging a procedure, too. The proceedings launched in 2010 because of presumed discrimination based on job advertisements were closed in several cases by arrangement: the legal entity against whom the complaint was filed, i.e. the publisher of the advertisement which was the subject of the complaint recognised the requirement of equal treatment in the process related to the establishment of employment and directly preceding it, including in the development of the conditions included in the published advertisements. At the same time, they also recognised, that the conditions for application included in the job ads were discriminatory, and for this reason they dissociated themselves from them. In the opinion of the Authority, prevention is of key importance in arrangements ending proceedings related to discriminative job ads, since in these cases the desired goal is the prevention and elimination of future reoccurrence. As regards cases related to age discrimination, the Authority acted mainly in cases related complaints from elderly people (over 50 years old). Compared to the European Union (EU) average, the employment rate in Hungary for persons 6 Decision 21/1994. (IV. 16.) AB Equal Treatment Authority 8

11 over 50 years of age is low; three out of four elderly people feel they have suffered discrimination because of their age. This is also supported by a Eurobarometer poll entitled Discrimination in Europe, according to which approximately 71% of those involved were of the opinion that people over the age of 50 have a lower chance of finding a job. They can be disadvantaged not only in the application process, but also during trainings, promotions, the definition of working conditions as well as in termination of employment. 7 In general, discrimination based on age can most effectively be proven by statistics, for example when in can be seen in the case of downsizing affecting a group of or several employees that the employer seeks to get rid of mainly its older, and mostly better paid, employees. When it comes to recruitment, it is often difficult to establish a cause and effect relationship between the protected characteristic and the disadvantage suffered. During job interviews, usually only the complainant and a representative of the employer are present, thus it is difficult to prove that the applicant was deprived of a job opportunity because of his/her age. Verification is especially difficult in cases where there are many applicants for a job but only one person gets the position. The Authority rejected the complaint of a petitioner who applied for the position as a boarding school teacher and the employer did not choose the complainant from among 125 applicants. In such instances the Authority investigates whether the person who was eventually employed possesses the qualifications and education/training appropriate for the advertised position. Age discrimination is not necessarily proven even if an applicant younger than the complainant gets the job. The subject of the procedure may justify his/her actions by claiming that he/she employed a younger applicant than the complainant because the former possessed a Start Card, which entitles the employer by law to benefits during the term of employment. The Authority established the violation of the requirement of equal treatment in the case of an employer who advertised a vacancy for a preparatory engineering job and did not employ an applicant in his late fifties, but rather another applicant who was under the age of 30. It could be established during the procedure that the applicant who was hired contrary to the older applicant had neither an engineering qualification nor any technical practice or experience necessary for the job, while the rejected applicant was able to prove that he had had several similar jobs earlier in his career. 8 The Authority receives a large number of complaints in relation with the exclusion of persons over 50 from the labour market. In such cases, those concerned do not even reach the job interview stage, which means that no tangible contact is established between the employer and the job seeker beyond the submission of the job application. This, in turn, may cause difficulties of obtaining evidence in an administrative procedure. In line with the regulations set forth by the Equal Treatment Act, it is sufficient for the complainant to render probable his/her characteristic and his/her personal, concrete harm suffered. In addition to this, in line with Article 19 of the Equal Treatment Act, the complainant is required to present to the Authority facts from which the conclusion can be drawn that his/her complaint can be objectively judged to be valid. Subsequently, in compliance with the rules of the so called shared burden of proof as set forth in Article 19 of the Equal Treatment Act, the subject of the procedure is obliged to provide exculpatory evidence. At the same time, the Authority is also obliged to provide evidence for the case, which is why in its decision it is not allowed to rely solely on the potentially unsuccessful defence of the subject of the procedure. 7 Source: Eurobarometer, Discrimination in Central Europe 8 Case No. 656/ Equal Treatment Authority

12 Nonetheless, the situation of complainants is not hopeless even when there has been no substantial contact between the employer and the job seeker prior to the establishment of an employment relationship. An example is a procedure conducted against an international store chain in which the complainant claimed that, although he possessed experience as a shelf loader/stock keeper, his job applications for this position were repeatedly unsuccessful. Considering that the applicant presumed his protected characteristic and his/her personal and particular injury through the submitted job applications and by declaring his qualifications and experience, the Authority launched proceedings against the company concerned. 9 The store chain emphasised in the first place that the number of applicants continuously and significantly exceeds the number of available jobs, and therefore, filters need to be built into the system. One of these filters is that applicants have to register on the company s website and, and from this basic information the employer obtains the information which is relevant for them. The complainant applied for a night-shift position as a shelf stocker, but on the website indicated the afternoon shift as the preferred shift. The employer argued that due to practical reasons they only offered the opportunity for an interview to those who explicitly wanted to work night shifts. In this respect, it considered that the fact that the applicant would be happy to take a job in any shift had no relevance. In relation to this argument, in its decision, the Authority pointed out that no other preference could be marked in the online form. As for the argument of the employer (against whom the complaint was filed) that in order to simplify things they only invited those individuals to an interview who did not mark the only shift preference available on the form (afternoon) (thereby implying that they would like to work the night shift) was not acceptable in light of the facts. Furthermore, it could not be proven that the employer s actions were justified, legal and proportional based on the type and nature of the job, pursuant to Article 22 of the Equal Treatment Act. In line with Article 19 of the Equal Treatment Act, in the framework of the proceedings the employer is obliged to prove in detail (exemption) that there is no connection between the applicant s protected characteristic and their injury suffered. However, it could be established that the employer filled the vacancies with applicants who were considerably younger than the complainant and had less experience in this type of job (shelf stocker storekeeper). It was not disputed that the complainant had worked for the employer as a shelf stocker for several years, while another person referred to in the case, who was 21 years younger than the complainant, had only worked as a salesman in a shoe shop and as an assistant in the production of leather goods. Regarding the other night-shift shelf stocker position, the employer did not name the person concerned in an identifiable way, and the forms they provided were lacking information and showed solely that the individuals concerned were all significantly younger than the complainant. The employer did submit any further information in connection to his exemption. Based on the above information, it could be established that the employer did not meet his obligations for exemption, and therefore, pursuant to Article 5 (d) and Article 8 (o), as well as Articles of the Equal Treatment Act, he violated the requirement of equal treatment. In another case, the complainant contacting the Authority referred to his belonging to the Roma minority as the reason for the discrimination he suffered, which was that despite several promises made to him he was not hired as security guard, although several other individuals were hired in the meantime. The complainant submitted his complaint to the Chamber of Bodyguards, Property Protection and Private Detectives, upon the advice of which he contacted the Authority. With adequate documents, he demonstrated that he possessed the training, qualification and professional practice required to work as a security guard. He also identified the particular person who had earlier promised him several times, on behalf of representing the subject of the procedure, that he will be employed. 9 Case No. 69/2010 Equal Treatment Authority 10

13 The subject of the procedure did not give a written statement or appear at the scheduled hearing, and it did not react to the contents of the hearing minutes that were sent to him, either, but at the same time it accepted all mail sent to it, including the verdict on the fines related to the procedure. The Authority interpreted the behaviour of the subject to be aimed at buying time, and considering the fact that it did not fulfil its obligation in relation to exemption and evidence, the Authority established that a violation of the law had occurred, prohibited its continuation or repetition and obliged the employer to pay a fine of HUF 1.5 million. 10 Motherhood II.1.2. Discrimination during the employment relationship The complainant was on inactive status in terms of the labour law for 10 years while she was on unpaid leave raising her three children. After she indicated her intent to return to work, her pay did not change but was calculated to the same amount as several years earlier, and her employer took no action to correct this. In response to the complainant s written complaint, the managing director informed the complainant that the firm was not legally obliged to increase her wage, and, taking this into consideration, her last wage was taken into account for her holidays as well, and her cafeteria budget was also calculated on this basis. 11 In general, in relation to the contents of the application it is worth emphasising that the objective of state support to families, within its labour law aspects, is to harmonise the promotion of women s careers and the institution of motherhood. True equality between women and men and the above-mentioned objective also appear in Article 84 of Act XXII of 1992 on the Labour Code, which states that (t)he base wage of employees shall be adjusted following the completion of military or civil service, and upon ending a leave of absence without pay taken for the nursing or care of children or for the nursing or care of a close relative, in accordance with the average annual wage improvement implemented in the meantime by the employer for employees in the same position and with the same experience. In the absence of such similar employees, the rate of actual annual wage improvements implemented by the employer shall be applied. On the basis of Article 84 of the Labour Code, therefore, the employer is obliged to establish a new wage upon the completion of unpaid leave taken for caring/nursing of children. The Hungarian regulations are in full compliance with EU law. As early as 1988, the Commission of Ministers of the Council of Europe set out as a general objective the realisation of true equal opportunities for women and men, including in the area of equal pay. Directive 2002/73/EC of the European Parliament and of the Council amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions specifically set out that the Court of Justice of the EU recognises the protection of employment rights of women, in particular their right to return to the same or an equivalent job, with no less favourable working conditions, as well as to benefit from any improvement in working conditions to which they would be entitled during their absence. It is worth pointing out the formulation of the text of the regulation, which expresses the intention of the international and Hungarian legislators. Primarily the objective that employees raising their children at home similarly to employees caring for family members, or employees carrying out military or civil service do not suffer discrimination when re-entering the labour market in comparison to their fellow workers performing work of similar value. These basic principles, when formulated in this way, contain not only the equal value of work, but in 10 Case No. 281/2010/2010. sz. ügy 11 Equal Treatment Authority

14 connection with this also criteria of comparable situations, which the legislator specified two segments of in the provision of Article 84 of the Labour Code: identical job (as the primary and most important qualifying characteristic of the employment relationship) and practice. All this is in compliance with the provisions of the Equal Treatment Act, as well. As regards the current case, employees returning from child care leave are distinguished from other employees by an attribute that is directly connected to their personality, namely the protected characteristic of motherhood (or fatherhood). Concerning the employer s justification, it is important to point out that the ad hoc decision No. 1439/2006 of the Supreme Court is clear in the sense that in the correct interpretation of Article 84 of the Labour Code, the employer has the obligation to establish a new wage for employees upon the termination of unpaid leave taken for the purpose of child care/nursing. It could be established as fact in relation with the employer s obligation that the original job of the complainant had ceased to exist during the nearly ten years when she was on child care leave, and two very similar jobs had been created for the tasks concerned. The legislator regulated precisely the above-mentioned situation with the second sentence of Article 84 of the Labour Code (original, Hungarian version), which states that if there are no employees working in the same type of job with similar experience, the average salary increase amount is the standard when in this case calculating the salary increase for the employee coming back from child care/nursing leave. The Authority could establish as a fact that the company against which the complaint was filed implemented wage increases every year during the investigation period, both in the framework of an overall wage increase, as well as for the employees who took over the tasks covered by the original job of the complainant. In line with the intent of the legislator, the Authority s investigation extended to whether any raises were implemented by the employer during the period when the complainant was on child care leave and from which she could have benefited had she been actively employed at the time. The Authority, as a body conducting administrative procedures, establishes the facts of a case based on the documents, information and testimonies available. The Authority did not accept the employer s claim that discrimination did not occur, rather only misinformation, which was later corrected. Two occurrences especially contradicted the employer s argument. For one, the complainant was not the first or only young mother employed by the firm concerned who returned from child care leave and in whose case the relevant Labour Code provision should have been applied. Secondly, in the correspondence between the head of the company and the complainant regarding a salary increase which preceded the initiation of the procedure, the employer did not mention as set out by Article 84 of the Labour code an examination of the need for a raise as well as the international approval process connected to this. On the contrary, a categorical exclusion of the possibility of wage increase was could be concluded from the information provided in the first letter which the employer sent to the complainant. The Authority considered it to be discriminatory that the complainant was excluded from the proportional wage increase in the period between the expiration of her unpaid leave and the raise actually received, i.e. she received lower pay during this period of time. Discrimination could be also be verified in the case of the complainant and the employee whose situation could be considered most comparable due to her personal attributes, position and the time spent with the employer. In applying sanctions, the Authority took into account the fact that the employer reconsidered his original position and, complying with his legal obligation, after the Authority s launching the proceedings, raised the complainant s salary. Equal Treatment Authority 12

15 Violation of the principle of equal pay for equal work The detailed rules breaking down this principle are set forth both in the Labour Code 12 and the Equal Treatment Act. In the legal disputes related to the principle of equal pay, among the concepts of the Equal Treatment Act, usually the prohibition of direct discrimination has to be applied, since, in most cases, that is what discrimination occurring in pay constitutes. 13 The Authority adopted a condemning decision 14 in the following case because of the violation of the above-mentioned principle. The complainant worked at a company as tool storekeeper in the same job as two male workers, but her wage was 70% lower than that of one of her co-worker s and 100% lower than that of the other s. The Authority obtained a statement from the employer on the wages paid during the period concerned, and the employer argued that the salaries were negotiated, and while the two men in comparable positions had worked for the company for 15 and 16 years, respectively, the complainant and another female tool storekeeper had been employed for 4 and 2 years, respectively. Furthermore, one of the male employees had worked previously in a managerial position, although in a different area of work. However, according to the complainant, one of her male co-workers began working as a tool storekeeper around the same time as her, while the other started later than she did (they were employed in different positions earlier), which is why the complainant trained both of them. In the period under investigation, the employer set the complainant s salary at a significantly lower amount than that of the male employees working as tool storekeepers, and this difference was proportionately maintained in the course of salary increases, as well, which resulted in an increasingly larger difference. Although the male employees had been employed by the employer since 1993 and 1994, respectively, but they had worked as tool stock keepers only since 2003 and 2007, i.e. one of them might about two years more experience than the complainant, while the other had even less experience than she. The basis for comparison could only be the identical job when it comes to practical experience, as well, and this could not justify the extremely large salary difference in this case. The employer did not deny that there was a salary difference, but was not able to prove that this was justified, lawful and proportional due to the type and nature of the job; he justified the significantly higher wages of the men with just one specific reason: their time spent with the company. However, professional experience gained in another type of job could not be a lawful reason for the salaries of the male employees being consistently % higher than that of the complainant. The direct discrimination based on sex was also proven by the fact that the other female tool storekeeper s wage was also lower by 45-60% and 100%, respectively, than that of her male co-workers throughout the entire duration of her employment at the company. In its decision establishing a violation of law, the Authority prohibited the continuation or repetition of the discrimination and imposed a fine of HUF 500,000 on the employer. In 2009, the Authority condemned a construction company and its legal successor for violating the requirement of equal pay for equal work because it paid a lower wage to the complainant than to her male co-workers in comparable situations because she was a female. 15 The companies initiated a court review of the Authority s decision establishing a violation of the law. In 2010, the Metropolitan Court of Budapest rejected the request. 16 While the employer claimed in relation with the salary difference that it considered the professional experience and command of foreign languages of the male fellow employees to be their advantages and not the disadvantage of the female complainant, the Metropolitan Court of Budapest, in congruence with the Authority s decision, took as the starting point the job 12 Article 142/A Paragraph (1) of the Labour Code. 13 Source: Gyulavári, Tamás Kádár, András Kristóf: Outline of Hungarian discrimination law. University 14 Case No. 117/ Case No. 1363/13/ K /2010/5 13 Equal Treatment Authority

16 requirements as set forth in the job advertisement as concerns qualification, foreign language knowledge and professional experience. Based on this, the Court did not accept the employer s defence that the justification for the wage differences that were established at the time of hiring was the advantages possessed by the male employees (foreign language knowledge, professional experience), which were actually not included in the job advertisement as neither a requirement, nor even as advantage. The Court established in congruence with the Authority that the employer also violated the requirement of equal treatment when it placed the complainant and another female employee, in spite of their university law degrees, in the salary category for employees with a secondary education, in contrast to the male staff member with a university law degree. The Court also pointed out that the employer was not excused from infringing the requirement of equal treatment by the fact that the complainant had signed and accepted her work contract, including her the amount of her salary. Cases related to membership in a trade union The Authority sometimes receives complaints concerning trade unions in which the resolution of the conflict between the parties falls within the scope of authority of the courts. The Authority is not able to monitor or enforce the fulfilment of interest representation rights (as provided for by Article 199 of the Labour Code), and in such cases the procedure ends with an official rejection without any actual investigation having taken place. Accordingly, when for instance the complaint is that the employer is regularly delayed presenting certain measures for comments, the Authority does not carry out an investigation. 17 Any practice as a result of which a trade union is not able to present substantial comments on the employer s original concept is considered discrimination and therefore isn t given an opportunity to achieve any change in it; nevertheless, the fulfilment of the employer s legal obligation cannot be enforced through the Authority but only through the labour courts. The Authority has received complaints when several trade unions function in relation to the same employer and they are treated very differently. 18 The violation of equal treatment in such cases is occurring in the relationships of the trade unions to one another, i.e. the complaining organisation is the injured party, and instead of another organisation, it is the employer which is assumed as having acted in a discriminatory way against it. In the specific case investigated, the prejudice manifested itself in harassment and demeaning behaviour; the employer showed a kind of negative attitude towards the complainant organisation. The Authority examined whether there was any circumstance/protected characteristic that resulted in this practice, i.e. did the case fall within the competence of the Authority. Regarding this, the complainant was not able to meet his obligation of rendering the allegation probable, he only emphasised his membership in the trade union. The Authority pointed out that the fact that a trade union is concerned, without any relationship between the injury suffered and the union entitlements, in itself does not provide a legal basis for conducting an official procedure. In this context, it can especially be considered an injury of such kind if for instance the member is not allowed to take minutes during a voting session or is not allowed to vote at a meeting, or if they cannot nominate themselves for various tasks within the trade union. In the case concerned, although the injuries indicated (e.g. insulting statements in published advertisements, offensive declarations and statements made against the members concerned) may violate the personal rights of the members of the complainant union, they do not concern the exercising of membership or participation rights, and therefore they do not fall within the scope of the Equal Treatment Act. The Authority solely has competence in cases concerning trade unions of employees if the complaint is related to the exercising of membership and participation rights. 17 Case No. 1407/ Case No. 700/2010 Equal Treatment Authority 14

17 In a complaint received by the Authority, an trade union claimed that the requirement of equal treatment of employees at a company was violated because the employer discriminated against certain employees when implementing raises. In line with Council Directive 75/117/EEC, the Hungarian Labour Code prohibits unjustified differentiation among employees when determining the remuneration of work which is considered to be equal in value. The explanatory note of the Labour Code points out in relation with the determination of work of equal value that in this respect the type, quality and amount of the work performed, the working conditions, the required qualification, the physical and mental exertion, experience as well as the responsibility assumed are especially to be taken into consideration. The investigation of the Authority was primarily focused on whether the employer, when implementing salary increases, discriminated between employees working in the same organisational unit and in identical jobs based on whether or not the employee was a member of an trade union, and if yes, which one. In this respect, during the evidencing procedure, it placed special emphasis on the examination of the arrangement that was concluded about the salary increase. Based on all this, it could be established that the employer concluded its income salary raise arrangements concerning employees engaged in organisational units and jobs with five trade unions with representation rights. The personal scope of the wage arrangements did not refer to the trade union relations of employees but contained only provisions regarding organisational units and jobs. Concerning their actual implementation, the interviewed witnesses regardless of whether or not they were members of the trade union which filed the complaint or another trade union consistently stated that the employees in the organisational units or jobs concerned received the raises stipulated in the arrangements independent of membership in an trade union. It was clear from the attached documents that the employer determined the personal scope of the wage arrangements concluded with the trade unions based on organisational units and job types. In light of this, the Authority established that in its wage arrangements the employer did not distinguish between employees based on their trade union membership. 19 In another case, the elected officials of the complaining trade union federation rendered probable to the Authority that the employer violated the principle of equal treatment against their trade union in relation to ensuring their entitlement to access to information, commenting, negotiation and consultation. In their judgment, discrimination between the trade unions could be observed at work council elections, in the conditions stipulated in the cooperation arrangements between the employer and the trade unions, in the involvement of experts in negotiations and in the functioning of the Sectoral Dialogue Committee. 20 The constitutional right to establish trade unions is set out in the Constitution of the Republic of Hungary and in general in the Freedom of Association Act. However, the rights of trade unions concerning labour relations and employment relationships are specified in the Labour Code. Trade unions functioning in various fields of interest representation have equal rights. In this vein, the Authority examined in relation to another case, taking into account the provisions of the Labour Code, the contents of the complaint of another trade union. In relation to the ad hoc denial of the entitlements of access to information, commenting, negotiation and consultation, the trade union stated that if they were not able to come to an arrangement with the employer on a given issue, they were completely excluded from further negotiation and, and other trade unions were also excluded from the consultations that had been initiated by the complaining association. 19 Case No. 203/ Case No. 153/ Equal Treatment Authority

18 It is important to emphasise concerning all this that pursuant to the relevant statutory provision neither of the parties is allowed to decline an invitation for negotiations aimed at concluding or amending collective arrangements. This obligation applies to the employer only if the trade union making the offer has representation. Pursuant to the explanatory note of the statutory provision, a precondition for the validity of an amendment to the collective arrangement is the arrangement of the parties who concluded the original arrangement (which is to be amended). In the practice of the courts, this is also supported by the Decision No. Mfv. II /1999 of the Hungarian Supreme Court, according to which only those trade unions are entitled to amend a collective arrangement which have concluded the collective arrangement concerned. All of this also means that if the scope of legal subjects concluding the arrangement and those concluding an arrangement with different contents is not the same, demands derived from the collective arrangement cannot refer to the arrangement concluded later. The collective arrangement which was presented to the Authority and which was in force with the employer was not signed by the complaining trade union federation, but only one of its member organizations. This was clearly explained by the time factor, as well, since the complaining trade union federation was established and registered after the negotiations and the signing of the original collective arrangement. At the same time, the employer sent decisions concerning its employees to the leaders of the trade unions that comprised the complaining trade union federation in order to obtain their opinion, as is the statutory obligation of all employers as concerns trade unions with representation. Accordingly, the leaders of the trade union which comprised the complaining trade union federation submitted feedback on the draft of the draft instructions for the latest salary increase which preceded the submission of the petition. It is the position of the Authority s that by only forwarding a copy of the annual wage arrangement to the complaining trade union federation rather than a certified arrangement, and by publishing it on its intranet page and internal newsletter, the employer fulfilled the requirement of equal treatment. Just because the wage arrangements are sent to the non-signatory trade unions by order of the general manager, the right of access to information is not infringed upon, particularly since, as mentioned above, decisions concerning the employees are sent to the representatives of all trade unions for their comments. The employer s argument according to which only those trade unions which had signed the wage arrangement received original copies was an employer s act which did not violate the purpose of the law that the officials of trade unions functioning with the employer, as well as employees who have the statutory obligation to know, for example, the collective arrangement, to have information on the employer s provisions in force in the given workplace. It is worthwhile to point out the aspect of the established facts which concerns the legal criteria for a comparable situation. In the case investigated by the Authority, the complainant was an trade union federation, whose so-called attribute which is to be protected by law is the real, more marked, more drastic capacity of a trade union not enduring any compromise and belonging to a trade union. However, the employer did not only fail to provide the complaining trade union federation with an original copy of the wage arrangement and the collective arrangement, but it also failed to do so with all trade unions which did not sign the arrangement. The other part of the complaint concerned the procedure of the work council elections taking place with the employer and to providing the necessary material resources. There is no doubt that it is the obligation of the employer to cover the justified costs of elections and the functioning of the work council. The maintaining of the legality of nomination and election processes, however, are to be taken care of by the electoral committee, in the work of which only the members of representative trade unions can Equal Treatment Authority 16

19 participate. The employer does not participate in the work of the electoral committee and cannot influence it. Providing for the propaganda activity by trade unions falls within the previously-mentioned right to publish information and calls/invitations. The manner of publishing information material, however, is not specifically defined by law, therefore the related possibilities can be listed only as examples, e.g. billboards, internal publications/newsletters and intranet. Among other things, the arrangements concluded by employers and trade unions serve to settle such issues. The investigation of whether or not equal treatment was maintained was therefore focused on clarifying what principles the presentation of elements of the draft arrangement by the employer were based on, and whether any disproportionality could be detected in them. Of key importance in this respect was the employer s argument, which was in relation with the given legal relationship and existed concerning all trade unions and was acceptable in terms of the system of exemption from equal treatment, and according to which it determined the special benefits provided on the basis of cooperation arrangements concluded with the trade unions based on interest representation capacity and membership size. As it is also explained in the law s explanatory note, the employer is not only obliged to tolerate the existence of the trade union, but it has to provide the minimum conditions for active interest representation work. The objective conditions of this beyond statutory regulations are set forth in the special cooperation arrangement concluded between the employer and the trade unions. It is therefore beyond a doubt that the employer differentiated among the trade unions in drafting the contents of the arrangement and providing services, but this applied not only to the complaining trade union federation, but to the other non-representative interest protection organisations as well. The statutory requirement must not be neglected in this case, either, that for direct discrimination to have taken place, the disadvantage and the characteristic protected by law must be in a cause-and-effect relationship. In the investigated case, however, differentiation between the communication channels accessible to the trade unions did not concern the complaining trade union federation only, and therefore, no real causality could be established between this and its so-called protected characteristic. On the basis of the contents of complaint, the participation of the trade unions in the Sectoral Dialogue Committee also has to be addressed, which is significant in the explanation of the Equal Treatment Act since it points out that the occurrence of discrimination cannot be established if the subject of the complaint acted in line with existing legal provisions. The provisions of the Act No. LXXIV of 2009 on Sectoral Dialogue Committees and certain issues regarding medium-level social dialogue (SDC Act) and of the document entitled Arrangement concerning the conditions and functioning of Sectoral Dialogue Committees during the period until the development of legal regulations set forth the criteria which need to be fulfilled in order to make an trade union eligible to participate in the functioning of the Sectoral Dialogue Committee. Since the number of reduced votes cast for the members of the trade union federation at the last work council elections altogether did not reach 5%, which is the legal requirement, it could be established that the employer observed the relevant regulations and did not discriminate against the complaining interest protection federation. 17 Equal Treatment Authority

20 In the petition submitted, the complaining confederation remonstrated against the manner of involving experts. As it became clear, the trade unions decided the issue by verbal arrangement, in which they agreed that external experts, i.e. experts having no employment relationship with the subject of the procedure, cannot participate the joint, so called plenary meetings on behalf of the trade unions. In this respect, the Authority especially relied on the testimonies of witnesses as a means of evidence, which were consistent in stating that the relevant verbal arrangement applied to all trade unions without exception. The related arrangement had been communicated to the trade unions, one of the co-chairs of the complaining interest protection federation also knew about it, and exercised their right to object. When weighing the evidence, special emphasis is placed on the time factor. In the case concerned, the verbal arrangement regarding external experts which was challenged by the complaining federation had been adopted before the establishment the trade union federation, i.e. it could not have been aimed at discriminating against the complainant. Another factor to be taken into consideration is the causality criteria, which, as is the case with the time factor, is excluded in this case by the fact that the denial of participation of external experts in the plenary session applied to all trade unions. Aside from this, there was an opportunity to involve external experts at separate consultations and negotiations with the participation of the employer and the trade union concerned. Therefore, all of the available information and submitted statements together did not support the claim that the employer discriminated against the complaining trade union federation in relation with its real interest protection activity. It is a necessary condition of real interest protection activities that the members of the trade union are able to carry out their union activity free from intimidation. This is set forth not only in the Constitution as the principle of freedom of association, but lawmakers also included the increased labour rights protection of trade union officials in the rules of the Labour Code, as well. It is worth highlighting that that a trade union s disarrangement with a planned measure of the employer can be considered well-founded if the action of the employer would hinder the functioning of the trade union body in which the employee has a position, and/or if the action would be discriminatory because of participation in the interest protection activities of the trade union. Upon a report filed by the trade union official of a foreign-owned company, the Authority examined whether the employer s behaviour towards the trade union official was able to, in its intention or effect, create a humiliating, exclusionary workplace environment. 21 The complainant was employed by the firm which was the subject of the complaint before becoming an official within the trade union and communicating this to his employer, therefore, special attention was paid to any noticeable changes in the workplace atmosphere. All this is also significant when examining the existence of a cause and effect relationship within the framework of the Authority s proceedings examining the occurrence of harassment. Although the witness testimonies were divergent when it came to whether it was only the employer who launched an offensive against the complainant, or whether the style of the employee concerned became noticeably more confrontational as a result of his role in the trade union, it could be established as a fact that the injured party s taking up of a position in the trade union had an impact of the workplace atmosphere. An important feature of labour relations is hierarchy. Precisely for this reason, in addition their qualification, individual attributes and personality traits, the workplace situation of employees is also fundamentally determined by their relationship to the leader of the organisation concerned, since the management s style and attitude influences the 21 Case No. 86/2010 Equal Treatment Authority 18

21 employees spirits and general feeling. Regarding this, the Authority elucidated in several decisions that the direct manager has to understand that he/she is responsible for ensuring that the requirement of equal treatment is observed. In the light of all this, it is important to examine whether those in management positions at the employer in question are informed about the opinions expressed against the complainant, and whether these can be separated from his/her interest protection activity. In the investigated case, it was clear that the content of the opinions expressed could not be defined separately from the trade union activity of the complainant. In another case, the complainant claimed that his application of a member of the music choir functioning at the employer s for the position as lead tenor was rejected by the subject of procedure because the latter considered it to be a manager position and for this to be in conflict with the complainant s position as a trade union official. The employer was of the opinion that unconditional loyalty towards him is necessary from those holding manager positions and that the complainant did not fit this criteria since he had sharply criticised the management several times and had regularly expressed critical opinions concerning technical, strategic and conceptional issues. In relation with the complaint, the investigation of the Authority was focused on the question of whether there was a causal relationship between the injury suffered by the complainant and his trade union membership as a protected characteristic, and whether the employer may set any conditions in the sense of the provisions of Article 22 of the Equal Treatment Act which can be considered lawful in the case of a manager position. 22 The Authority s position was that a causal relationship exists between the protected characteristic of the complainant and the individual, specific prejudice he suffered. It could be concluded that all of the complainant s conflicts derived from his membership in an trade union (trade union, work council). In relation with exercising trade union activities, however, both the Labour Code as well as Article 8 (s) and Article 21 (g) of the Equal Treatment Act set forth that the employee must not suffer any disadvantage for this reason. This applies in particular to the constitutional freedom of the person carrying out trade union activity to express his/her opinion. It was within the framework of these provisions within which the complainant demanded the maintenance of the original structure of the choir which had been functioning for 57 years ( it established its values in its original form ), where on behalf of the choir he denounced that the role of choir members at certain performances was not worthy of choir members, and also criticised the remuneration of the manager and the way of administering reimbursements. In addition to this, exclusively for saving the choir in its original form, the complainant, who had by then worked for the employer for 20 years, contacted the competent parliamentary committee, prior to the employer initiating a downsizing of the staff. In this case, the Authority also investigated whether the defence of the subject under procedure was acceptable pursuant to Article 22 of the Equal Treatment Act when stating that the lead tenor position was considered a management position and, among other things, unconditional loyalty towards upper management could be expected from the person holding this position. In connection with this, the Authority did not dispute the employer s right to place persons in management positions whom he trusts unconditionally and who fully identify with the management s decisions. At the same time, it could clearly be established that the lead tenor position in question could not be considered a management position. This was reflected by one of the managing directors orders, which defined the job of lead tenor to be that he/she leads the rehearsals under the guidance of the choir master in cooperation with the members of the choir, manages the professional work of his/her fellow choir members, leads the warm-up, participates in the dress rehearsals, prepares the individual role allocation, makes proposal for temporary 22 Case No. 1144/ Equal Treatment Authority

22 assistants and performs other tasks assigned to him. In the organisational hierarchy, the lead tenor is subordinated to the choir master, and there are several other lead positions, as well. In this context, the employer s claim that the complainant held a management position as lead tenor, under which he could express any potential opposing opinion against the employer with management approval, was unrealistic. In addition to this, it should be highlighted that, on the one hand, the complainant may express an opposing opinion as a choir member and as trade union official with the same emphasis, and on the other hand, he would not have any management competence in the employer s unit as lead tenor, thus the professional work performed by him would have no impact at all on the strategic concept of the employer. In relation with this, the Authority pointed out that the employer was not able to refer to any specific occasion when the complainant hindered or could have hindered the implementation of the former s strategic concept (although, in line with the above, this wouldn t have any relevance to the lead tenor position). Pursuant to Article 19 of the Equal Treatment Act, it is the obligation of the subject of the complaint to provide evidence on the necessity of further requirements for the lead tenor position set subsequently (openness, ability to integrate and manage staff, flexibility and creativity), as well as on the inability of the complainant to meet these requirements. However, the subject of the procedure failed to fulfill the burden of proof, and the interviewed witnesses did not support his allegations, either. Pursuant to Article 8 of the Equal Treatment Act, from the point of view of violating the requirement of equal treatment, it also has no relevance that the lead tenor position remained vacant for a long time and the proper person was found only several months later and was appointed just on a temporary basis for two months. An infringement takes place if as a result of a procedure a person or group is disadvantaged because of a real or perceived protected characteristic and is treated differently than other persons or group in a comparable situation. Based on the above, it could be clearly concluded that the decision of the subject of the procedure could not be considered lawful or proportionate discrimination as defined in Article 22 (a) of the Equal Treatment Act as being justified by the type and feature of the job, thus his behaviour violated the requirement of equal treatment pursuant to Article 5 (d), Article 8 (s) as well as Articles of the Equal Treatment Act. Harassment If any behaviour which violates human dignity and is aimed at creating an intimidating, hostile, humiliating, degrading or offensive environment is displayed against individuals possessing attributes listed in Article 8 of the Equal Treatment Act in relation with such an attribute, this is harassment. 23 Harassment is a form of direct discrimination. According to the definition of harassment, behaviour that was not explicitly aimed at creating an offensive or intimidating environment but in itself was able to obtain the same effect is considered an infringement in itself. Characteristic of the methods and means of harassment is to place sexuality in the foreground where it has no relevance. A particular feature of workplace harassment is for persons in higher positions within the hierarchy abuse their position and make their power felt by their subordinates in a particular way. An important element of harassment is that it does not require intention on behalf of the harasser, therefore the measure or practice may be a violation even if it is only able to have the effect of creating an environment which harms human dignity and is degrading and 23 Pursuant to Article 10 (1) of the Equal Treatment Act, harrasment is a conduct of sexual or other nature violating human dignity related to the relevant person s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person. Equal Treatment Authority 20

23 humiliating. Thus, in practice, joking, banter or any other manifestation which, even if its declared purpose is not to humiliate the harassed person, in the subjective impression of the harassed person and in the perception of his/her environment is still suitable to create an environment which harms human dignity can be considered harassment. In order for harassment to be established, it is necessary that the behaviour of the harasser harms human dignity, the injured party possesses a characteristic listed in the Equal Treatment Act, the harassment can be brought into relation with this attribute and the development of a degrading, hostile etc. environment can be determined. It is important to know that it is not only considered harassment when the person displaying such behaviour has this explicit intention, but also when he/she even without his/her will causes such an effect. Therefore, in the proceedings initiated because of harassment, the Authority examines both the subjective judgment of the complainant as well as the effect of the behaviour on the environment. In one case investigated by the Authority, the complainant had been subjected to regular harassment on behalf of one of her co-workers, who at the beginning of their working together tried to approach her more and more openly, which put her in an unpleasant, sometimes humiliating situation in her workplace, and after rejecting him, she had to carry out her work in a hostile environment. The direct superior of the complainant did not take any measures to end the negative situation. When the complainant reported the harasser to her boss, she was confronted with him in front of the whole staff and the leader of the institution only made a cynical comment about her complaint, after which he noticeably distanced himself. 24 The subject of the procedure argued in his declaration that the complainant informed her direct manager about the case, who whished to clarify the conflict through a discussion. During the discussion, the complainant s co-worker denied everything, but despite this the manager warned him against displaying any behaviour which might offend or hurt the feelings of other staff members. According to the statement of the subject of procedure, no other actions were taken in the case. In reacting to the statement, the complainant stated that her manager tried to influence the staff members testimonies, and also held her to account for complaining to the Authority. The Authority established the responsibility of the employer for the sexual harassment suffered by the employee. Pursuant to the Equal Treatment Act, the employer can be held accountable for workplace harassment if in spite of knowing about the violation he/she does not do his/her utmost to eliminate it and to protect the employee being harassed. The employer is responsible for the behaviour of the employees even towards each other under his supervision in the workplace and during working hours. Workplace harassment must not be considered a private conflict where the person being harassed can be left on his/her own to resolve it. The witnesses questioned during the procedure confirmed the complainant s statement that they all perceived a deterioration of the workplace atmosphere and that the manager did not handle this adequately. Pursuant to Position No. 384/5/2008 (IV.10.) TT of the Equal Treatment Advisory Body on harassment and sexual harassment, harassment and sexual harassment can be realised through passive behaviour, as well, when the employer finds out that one of his/her subordinates is harassing a co-worker but does not take any measures to stop this. Furthermore, pursuant to the Position of the Advisory Body, not only the steps taken to prevent the harassment are to be taken into consideration in evaluating the employer s behaviour, but also whether the employer could have taken any further reasonable and feasible action concerning the case. The obligation of the employer as per Article 5 (d) of the Equal Treatment Act to refrain from discrimination also includes ensuring that his/her subordinates refrain from discriminative acts and are also that they are protected against such acts. In the Authority s opinion, however, the behaviour of the employer in the case concerned did not serve to eliminate the violation and prevent further violations, but 24 Case No. 1/ Equal Treatment Authority

24 instead had the contrary effect, thus the employer did not meet his above-mentioned obligation. In addition to the above, the subject of the procedure was unable to deny that the behaviour of the harasser harmed the human dignity of the complainant, nor could he deny that a hostile, degrading environment had developed around the complainant in the workplace, and the employer did not present an acceptable excuse concerning the claims of the complainant. The Authority prohibited the continuation of the unlawful behaviour and obliged the employer subject to the procedure to develop procedures and instruments to be applied in the event of infringement to the requirements of equal treatment as set forth in the equal opportunities scheme of the institution, and furthermore imposed a monetary fine in of HUF 100,000 on him. In another case the complainant claimed that his employer harassed him because of his presumed sexual orientation, i.e. that the latter created an intimidating, hostile, humiliating, degrading or offensive environment around him. He connected the development of the harassment to a holiday abroad where he was accommodated in a room with one of his male colleagues. Subsequently, his manager displayed a hostile attitude towards him and his colleague, both face to face and in the presence of others, he didn t assist them in their work, and he discussed the alleged relationship of the two employees in official workplace meetings. One of the results of this was that their staff members distanced themselves from them, too. One of the main features of complaints related to harassment is that they are especially difficult to prove because of a lack of witnesses, as well as the private spheres and fear of losing their jobs of the person concerned and of the witnesses. The complainant, however, was able to provide audio records and witnesses which proved that his managing director insulted him and his colleague on numerous occasions in the presence of others because of their alleged sexual orientation, and with his atrocious statements created a humiliating, degrading, hostile and offensive environment for them. The managing director made extreme statements, for example that the two men did not comply with social role expectations, which will result in problems sooner or later. He also stated that in his time people like them would have been kicked in their balls so as their hard that their heads fell off, and although nowadays feminine boys are fashionable, people in the countryside do not tolerate this even today. He also detailed at great length that if two men or women walked hand in hand or kissed each other, he couldn t resist laughing. He added that the complainant was a person in his disposition who must not be allowed to appear on-screen, and that his colleague was frequently in the company of people who could be seen in Népliget park (an area rumoured to be a meeting place for homosexuals). The managing director even expressed this opinion to the mother of the complainant by telling her that he was very tolerant, but there was a point where he was not because her son behaves awfully like a girl. It played a decisive role in the development of the humiliating, degrading environment that all employees witnessed this conflict. One of the manifestations of this was when the cleaning woman requested in front of all staff members that the complainant and his colleague admit to their love. She added that they should apologise to anyone whom they might have offended. It could be established unambiguously on the basis of audio records and the data gathered during the evidence process that the sexual orientation of the complainant and his colleague became a subject that generated conflicts with their employer. One proof of the escalation of the conflict was that one employee even sent a confidential job offer to the complainant. 25 In case of harassment, the Authority s proceedings can only be conducted against the individual exercising the legal function of employer. The employer s responsibility can be 25 Case No. 985/2010 Equal Treatment Authority 22

25 established in each case when the harassment has been carried out by the employer s superior or e.g. by an employee who has the right to give orders. Regarding this, it has to be highlighted that the employer is also responsible for harassment as an act violating human dignity if he/she did not carry out the harassment, but knew about it and did not take all steps that can be expected of him/her in order to eliminate the harassment and rather considered it to be a private matter of the employees. In the case concerned, however, it became unambiguously clear that the employer was not only aware of the harassment being carried out against the complainant, but has actively provoked it, which means that he exhausted all criteria of the behaviour as specified in Article 10 of the Equal Treatment Act. His argument, according to which the complainant and his colleague created the atmosphere by treating the female staff members in a degrading manner, was untrue, since the audio records verified precisely the contrary. In fact, the complainant raised specifically asked his manager what the reason was for the atmosphere that had developed and why he thought him to be homosexual, to which the manager gave a long, uninterrupted reply in which he detailed in a degrading manner his negative opinion of individuals, including the staff members concerned, who had a different sexual orientation. At the same time, no reference could be heard in the audio records about anti-social behaviour displayed by the complainant and his colleague, nor was this supported by the witness testimony. The Authority pointed out that the claims that the complainant and his colleague did not know the phrase thank you, ate their lunch separately and did not go out to smoke with the others, even if they had any truth to them, did not and would not have justified the extreme harassment of the employer. It could be also concluded from the evidencing process that the subject of the procedure displayed direct discrimination against the complainant regarding to his protected characteristic. The argument of the representative of the subject of the procedure that there is no comparable group was not valid since the managing director clearly stated that the complainant should be taken off the screen because of his feminine behaviour ( he might pass on the radio ). The position of the complainant obviously had or has to be filled by someone else, both of which mean a fulfilment of the legal definition. Not even the employer denied that the complainant could only be seen in one program after the affair, whereas before he had been on numerous shows. However, the selected colleague did not agree to carry out the interview. The employer violated the principle of equal treatment by not allowing the complainant in front of the camera as opposed to other employees because of his presumed sexual orientation, and through this behaviour and the measures taken he displayed direct discrimination. The Authority established, furthermore, that the employer created a hostile, humiliating, degrading and intimidating environment against the complainant because of his presumed sexual orientation, through which he carried out harassment as specified in the Equal Treatment Act, and which ultimately led to the termination of the complainant s employment and to the impairment of his health. The Authority also found the employer responsible in a case initiated because of the harassment of a young homosexual man. 26 The direct superior of the complainant, who was not the same person as his employer, created a humiliating, degrading workplace atmosphere connected to the complainant s homosexuality. The reconstruction of the humiliating atmosphere was made possible by hearing the staff members as witnesses. The harasser was frequently joking in the workplace during working hours, mostly in the absence of the complainant with other staff members about the complainant s belonging to the LGBT community and his sexual habits, and also called the complainant pejorative names referring to his sexual orientation in front of his co-workers. The superior did not only 26 Case No. 49/ Equal Treatment Authority

26 verbally make fun of the complainant s sexuality, but also imitated his hand movements and voice in front of the staff. On the basis of testimonies given by witnesses during the procedure, it could be concluded that the workplace atmosphere was not only humiliating and degrading for the complainant who belonged to the LGBT community, but women were also embarrassed by the sexual jokes of the male staff members. The complainant filed an undisputed complaint against his superior and presented his resignation, which the employer did not accept and promised that similar incidents will not occur in the future. However, the supervisor s mockery continued, and the other staff members often took part in it. The supervisor claimed throughout the proceedings that he didn t intend to humiliate the complainant or hurt him with his jokes, his intent was simply to create an informal and relaxed workplace atmosphere. During the hearing he apologised to the complainant. One s sexual orientation is one of the fundamental components of their human dignity and personality. The Hungarian Constitutional Court declared discrimination based on sexual orientation unconstitutional based on any other status as entailed in Article 70/A of the Constitution, 27 while the Equal Treatment Act already protects it as a specifically named characteristic. The Hungarian Constitutional Court set forth as a matter of principle in its Resolution No. 21/1996. (V. 17.) AB that discrimination according to sex (gender role) is indeed impermissible where sexual role is indifferent to the essence of the relation in question, or at least it does not have a constitutionally justifiable weight. In the proceedings, the Authority could only examine the responsibility of the employer and not that of the employee carrying out harassment, due to the fact that pursuant to Article 5 (d) of the Equal Treatment Act the employer is obliged to fulfil of the requirement of equal treatment. The requirement of equal treatment can be infringed upon not only through actions but also by omission, therefore also in cases where the employer does not take any steps against discriminative practices that have come to his/her attention and doesn t try to eliminate them, and does not provide a possibility to employees to file complaints against discriminative practices. It was proved in the course of the proceedings that the degrading workplace atmosphere was widely felt and should have been obvious to the harasser s superior, too, even prior to the complainant filing his complaint, and therefore the Authority condemned the employer who did not ensure an inclusive workplace atmosphere for violating the requirement of equal treatment. The Authority decided to levy a fine of HUF 2,000,000. The condemned employer appealed to the courts against the Authority s decision. 27 Resolution No. AB 20/1999 (VI. 25) Equal Treatment Authority 24

27 Retaliation Retaliation is when an individual violates the rights of, their behaviour is aimed at violating the rights of or they threaten to violate the rights of another individual because the latter objected to the infringement of the requirement of equal treatment, initiated proceedings regarding this or are involved in such a procedure. This regulation allows those to exercise their rights who participated in a procedure in relation to discrimination against themselves or others, and suffered injury because of this. Proceedings regarding retaliation may have special significance in cases when someone is the subject of retaliation because for instance he/she was involved as witness in an investigation into discrimination. Except for retaliation, a precondition of establishing any discriminative behaviour is that it can be brought into connection with a protected characteristic. In contrast, a criteria of establishing retaliation is that the complainant was involved in a procedure where he/she acted in favour of the realisation of equal treatment, and the retaliation was committed against him/her for this reason. It is important to note that it is neither excluded nor necessary that the person suffering retaliation possesses a protected characteristic, nor does the kind of the procedure in which he/she took part against or because of discrimination have any significance. In such cases, even the suggestion of retaliation justifies a proceedings by the Authority. In one such case, the complainant s story was recorded by an equal opportunities contact person of the Authority s Budapest office and she asked to initiate a procedure against her employer, but she withdrew the complaint before the Authority officially notified her employer, therefore the Authority cancelled the procedure. Subsequently, the complainant contacted the Authority again because in her opinion the employer applied retaliation against her because of the earlier initiation of a procedure by terminating her internal system while she was on sick leave. 28 Several witnesses in the proceedings stated that prior to receiving a formal notice about the commencement of these proceedings, several employees in the workplace received informal information that the complainant lodged a procedure with the Authority. The complainant s superior, who managed the equal opportunities department of the subject of the procedure, also heard about this at gossip level. The Authority investigated whether the behaviour of the subject of the procedure was suitable to cause a rights violation, and whether the behaviour being complained about by the complainant was connected to the fact that the latter had earlier contacted the Authority. In investigating retaliation, the complainant claiming this does not need to possess any protected characteristic, nor is it necessary that the Authority examines others in a comparable situation. Nevertheless, upon the request of the complainant the Authority heard two witnesses who had earlier also been on sick leave for a relatively long time, examining how the employer acted in their cases concerning the internal system. It could be established that for one of the witnesses the employer terminated access to the internal system when they went on sick leave for the second time, at the beginning of the leave. The other witness recalled that at the beginning of her sick pay she accessed the internal system from home and used it, but later she was did do so anymore, but she couldn t say whether her access the system had been terminated or not, since he/she did not need to use it any more. After their sick leave ran out, both witnesses employment with the subject of the procedure ended. The witnesses both stated that they didn t need the internal system for work since they did not work during their sick leave. In the course of the investigation, the parties unanimously stated that the complainant had been on sick 28 Case No. 664/ Equal Treatment Authority

28 leave since 10 February 2010, and she informed her superior, who was leading the equal opportunities department, on 9 March that she was pregnant, and therefore she would not work for longer periods of time. It could also be concluded during the investigation that the complainant didn t have any work obligations during her sick leave and that she didn t receive any instructions from the subject of the procedure except for transferring her tasks and responsibilities, but this was discussed before the complainant went on sick leave. The complainant unequivocally claimed in the proceedings that her supervisor, when he/she requested to limit the complainant s access to the internal system in an to his/her own managers, used the words better safe than sorry. The complainant wanted to prove this through witnesses, but ultimately did not name any in this respect. The complainant s supervisor, on the other hand, maintained his/her written statement submitted to the Authority that he/she requested to limit the complainant s access to the internal system because the complainant prolonged her sick leave status and therefore was not obliged to perform any work, and no tasks had been allocated to her. It was also established in the proceedings that the system was not disabled since it was still able to receive and store s, and following its activation access was granted again. All this was supported by the submitted to the Authority which was written by the complainant s supervisor to the IT service desk on 25 March 2010, in which he/she requested the limitation/suspension of the internal system due to the prolonged sick leave status of the complainant. In the opinion of the Authority, it is completely a realistic circumstance and an acceptable excuse for the work system of an employee to be suspend if he/she is not performing work for a longer period of time, in particular if he/she does not need to perform any work and doesn t receive any such instructions. All this complies with the requirement of proper exercising of rights, as well, since the employer did not take action immediately but only after he/she was sure that the complainant would not work for a relatively long time due to her expecting a child. It was established in the proceedings that the workplace system served the purpose of the employees performing their tasks, they use it in their work. The subject of the procedure informed the employees of this in a newsletter even before the complainant had turned to the Authority with her first complaint. The complainant, since she did not perform any work, had no reason for using the work system, thus it could not be concluded that she was disadvantaged by the suspension of her access to it. The Authority did not find that retaliation could be established and therefore rejected the complaint. II.1.3. Cases related to termination of employment The Authority established that an employer who was the subject of a procedure committed direct discrimination against a complainant because of her pregnancy when he terminated her employment during the probation period after the complainant informed her direct manager on her pregnancy. The current Labour Code does not require the employer to give a reason for dismissal if the termination of the employment takes place during the probation period (Article 97 (2) (a) of the Labour Code). Despite this, the exculpation rules set forth in Article 22 of the Equal Treatment Act do apply to employers in administrative procedures, i.e. the employer cannot be cleared of responsibility simply by referring to the above-mentioned Labour Code provision. In the investigated case, the employer argued that the complainant did not perform her work properly and this was is why she was fired. The Authority examined whether any objection had been raised against the employees working together with the complainant. Since the Equal Treatment Authority 26

29 employer evaluated his employees in written form on a regular basis, he/she submitted these evaluations upon the request of the Authority, and it could be established that he/she had given negative evaluations regarding other employees in a comparable situation, not only in relation with the complainant. It could be concluded from the evaluations that problems also arose concerning the performance of the employees after the dismissal of the complainant, but no one s employment had been terminated for this reason. Both the person exercising the function of employer and the direct manager of the complainant admitted at the hearing that they had knowledge of the pregnancy of the complainant before her employment had been terminated. 29 In another case, the Authority rejected the petition of the complainant on the basis of the employer s exculpation. The complainant claimed that her former employer terminated her employment during the probation period directly because of her pregnancy, i.e. in a causal relationship with it. In the proceedings, however, the employer proved with documents that he had decided to terminate the complainant s employment before he found out about her pregnancy, therefore, as there was no relation between the decision and the protected characteristic, no discrimination could be established. 30 An employer can vindicate himself/herself if he/she provides evidence that the discrimination is proportional, justified by the characteristics or nature of the work and is based on all relevant and legitimate terms and conditions considered during the hiring (Article 22 (1) (a) of the Equal Treatment Act). In the above-mentioned case, the subject of the procedure had to prove that he/she did not terminate the complainant s employment with immediate effect during the probation period because of her protected characteristic of motherhood (pregnancy). Although the employer (and the employee) is not obliged to give a reason for his/her decision to terminate the employment before the expiration of the probation period, the judicial practice is consistent in that the action/decision should comply with the requirement of proper exercising of rights. 31 Similarly to the requirement of proper exercising of rights, the requirement of equal treatment is also a general basic principle that prevails throughout the entire Labour Code, including the full scope of legal relations regulated in it. Thus, although the employer is not obliged to justify his/her decision to terminate the employment during the probation period, this decision must not conflict with the requirement of equal treatment. In the course of the Authority s proceedings, employers may be forced to explain and justify that their decisions to terminate an employee s employment was not connected to a protected characteristic of the employee. A 78-year old complainant had been working for a limited liability company engaged in security services as a security guard since 2002 with a work contract. The company terminated his contract in 2009 with the argument that it was forced to reorganise its workforce because of the economic crisis and will employ primarily those staff members in the remaining areas who do not work as pensioners but are employed and are parents raising children. The complainant turned to the Authority because in his opinion his work contract had been terminated because of his age. The employer defended himself/herself by claiming that two of his customers cancelled their contracts due to the economic crisis and security guard jobs became superfluous at the firm, therefore he was forced to reduce the staff. From eleven staff members, five individuals of various ages had been dismissed. However, the employer did contemplate whether he should provide work for pensioners or to those who have no other regular income. When making this decision, the company took into account the financial situation of its employees and did not want to leave any of them without income. The 29 Case No. 122/ Case No. 163/ Case No. BH Equal Treatment Authority

30 company also brought up in its defence that the complainant joined the firm at age of 71, i.e. was employed in spite of his older age. The Authority accepted the justification of the employer and rejected the complaint. On the basis of Article 22 (1) (a) of the Equal Treatment Act, the solution applied by the employer was accepted as differentiation which was proportional and justified by the characteristics or nature of the work. In its decision, the Authority referred to Article 6 of Framework Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, stating that, Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. The complainant appealed the unfavourable decision in court but he abandoned the application before the first trial. 32 II.2. Distribution of goods and provision of services In defining its scope, the Equal Treatment Act extends the requirement of equal treatment to a significant segment of legal relations under private law. This is a progressive and noteworthy regulation, and has a considerable effect on the image of the Authority s activity. The conventional (vertical) approach of regulation has by now become obsolete, and the latest legislation trends are moving towards horizontal legal relations, i.e. that the requirement of non-discrimination should also be enforced between private individuals. 33 Hungarian legislation, as in many other respects (it has an extremely wide scope even in a European comparison and does not have a closed definition, or in terms of the regulation of proof) is also very progressive in terms of its spirit, since it extends to a wide range of private legal relationships. The enforcement of the requirement of equal treatment, the regulation of the prohibition of discrimination based on public law and the impact of the administrative procedure conducted by the Equal Treatment Authority on private legal relations have created interesting border zones. Among private law relationships, labour law has been subject to strong state intervention for a long time. The specificities of a legal relationship, the inequality between the positions of the parties and the significance and duration of the legal relationship justify all this. However, when the Equal Treatment Act sets forth that due to the public feature of the legal relationship 34 the requirement of equal treatment has to be complied with also by those legal subjects under the private law who offer their services to an unspecified larger scope of individuals, it makes the most progressive move into the private law sphere of the scope of regulation. This extension of the scope of the law has created one of the most interesting and colourful areas of the Authority s activities, where among the diversity, well observable trends are also discernible. 32 Case No. 101/ See e.g. Menyhárd, Attila: The private law enforcement of human rights In: Liber Amicorum Studia L. Vékás Dedicata, 2009 Commemorative essays in honour of Lajos Vékás, ELTE AJK Civil Right Department, Budapest, 2009, pp See the Explanation of the bill on equal treatment and the promotion of equal opportunities: in Article 5 (a)-(b) the public nature of the legal relation, while in clause (c) the fact of state subsidies justify the obligation of fulfilling the requirement. Article 5 (d) does not result in a change in the current regulation since Article 5 of the Labour Code already prohibits discrimination in respect to these legal relationships. Furthermore, concerning the legal relationships related to employment, the requirement of equal treatment is to be complied with also according to the Council Directive 2000/78/EC. Equal Treatment Authority 28

31 II.2.1. Financial services We receive a large number of complaints concerning borrowing and other bank/financial services. In this respect, the Authority relied on Position No /2/2006 of the Equal Treatment Advisory Body 35, according to which pursuant to Article 5 (b) of the Equal Treatment Act, the legal relations of legal entities deemed credit institutions fall within the scope of the law. 36 Cases in which the credit application is assumed to have been rejected because of the age of the applicant occur very frequently. Regarding this, the practice of the Authority complies with the contents of clause 6 part B of Recommendation No. 9/2006. (XI.7.) on the principles of retail crediting provision of preliminary information to clients and consumer protection issued by the Supervisory Council of the Hungarian Financial Supervisory Authority (PszÁF). The Recommendation states that age cannot be a reason for automatically rejecting a credit request, financial service providers have to consider whether taking the risks into consideration they want to provide services to elderly customers. Accordingly, the Authority follows the principle that the automatic rejection of a credit application because of age is unacceptable. In one case, the applications of all customers over the age of 72 was rejected, that is the financial institute did not consider individual aspects at all; the Authority established infringement of the law in this case. 37 After seeing an advertisement, a 78 year-old Budapest resident wanted to acquire a credit card for a do-it-yourself store, for which he possessed a frequent customer card. He presented the required documents, but after a long wait his credit card application was rejected without reason, even though he complied with the general criteria set out in the advertisement. In the opinion of the complainant, his credit application was rejected because of his age. During the proceedings, the bank based its defence on the argument that no upper age limit was applied in judging credit card applications, rather the bank assessed the bearing capacity of the customer by means of thorough and thought-out credit risk analysis, and provided credit exclusively on the basis of income. The Authority did not accept the explanation of the financial institute since it could be clearly concluded from the submitted documents that the credit card applications of all individuals over 72 years of age had been rejected. The subject of the procedure also argued that the PSzÁF had examined the practices of the bank related to credit card products and found them acceptable. This was not enough to justify the discrimination since the PSzÁF report also stated that if the customer s age exceeded 72 years, approval is still possible based on an individual risk management decision, e.g. with a lower credit limit. Additionally, the bank argued that it had approved two shopping credits for the complainant, independent of his age. However, this only proved that the bank did not discriminate against the complain in the case of the shopping credits. The subject of the procedure also argued that, when a credit card application is rejected since the documents submitted by the customer are returned and other documents are destroyed the bank was not able to make any substantial statement concerning the specific reason of rejection. The Authority did not accept this argument, either, since according to the rules of shared burden of proof applied in the proceedings, it 35 Repealed by Position No. 309/2/2011 (III.25.) on the effect of the Equal Treatment Act issued by the Equal Treatment Advisory Body. 36 The position states that the scope of services provided by credit institutions is precisely defined by the relevant legislation. In exercising a part of the scope of activity it is necessary that these take place on premises open to customers (e.g. providing payment services, depositing services, safe deposit box services), while other activities require that the financial institute places offer contracting to undetermined individuals in advance (e.g. collection of deposits and accepting other repayable monetary instruments exceeding equity capital from the public; providing credit and monetary loans). According to the position, based on all this, the provisions of the Equal Treatment Act extend to the legal relationships of credit institutes and the [Equal Treatment] Authority has to duly investigate related caes. 37 Case No. 188/ Equal Treatment Authority

32 is the subject of the procedure who has to prove that the circumstances made probable by the complainant do not exist. Since the bank was not able to prove that the rejection of the credit card application had a justifiable reason which was directly related to the legal relationship concerned and was based on objective consideration, the Authority concluded that the bank had violated the requirement of equal treatment, prohibited the continuation of the unlawful behaviour, ordered the publication of the decision for a period of 6 months and obliged the bank to pay a fine of HUF 5 million. Neither of the parties challenged the decision. Another case, in which the complainant submitted a credit card application to a bank but was rejected due to his age, was settled by the Hungarian Supreme Court 38. In its application for extraordinary legal remedy, the bank argued that, on the one hand, the applicant did not submit a correct credit application, and on the other hand, even if it had been, he would have had to have rendered probable that the application was rejected on the basis of Article 8 (o) of the Equal Treatment Act. In its decision, the Supreme Court stated that Article 19 (1) of the Equal Treatment Act obliges the complainant to presumption, but in terms of the proceedings this is not identical to the burden of proof. Presumption, namely, is verification of a lower degree than an evidencing; it actually means the presentation of information required for launching the proceedings since, pursuant to Article 19 (2) of the Equal Treatment Act, in making the contents of paragraph (1) presumable the other party is obliged to prove that he/she complied with the requirement of equal treatment or was not obliged to do so. In order to initiate proceedings, therefore, the Authority only had to investigate how the complainant presumed the existence of his protected characteristic and the occurrence of discrimination. The Supreme Court did also did not agree with the bank s argument, according to which the complainant did not submit his credit application properly. The Court opined that it had no relevance in terms of committing an infringement how the credit application had been submitted and whether it complied with the bank s rules. From the contents of the correspondence between the bank and the complainant, it could unambiguously be established that the complainant applied for a credit card from the bank, which the branch of the bank rejected after a risk analysis. In another case, the financial service provider should clearly have provided a loan to the applicant according to the internal regulations presented in the proceedings since the complainant met the criteria set forth in therein, but the provider did not do so. Since the financial service provider did not give any reasonable explanation for the rejection in connection with the relevant legal relationship, the Authority established a violation of the law 39 since the rules of shared burden of proof in set forth in the Equal Treatment Act apply in this case, as well. Therefore, pursuant to Article 7 (2) (b) of the Equal Treatment Act, the possibility of exculpation with reasonable arguments in direct correlation with the legal relationship concerned exists in such cases. The Authority accepted as a reason for rejecting the credit application that the complainant s debt ratio exceeded the limit for which the internal rules of the service provider allow the provision of loans. 40 It was also an acceptable justification that the bank had concluded a loan arrangement with the complainant several times for relatively high amounts, but these transactions had not been implemented due to reasons which emerged within the sphere of interest of the applicant; i.e. the loans were ultimately not taken up, thus the financial institute rejected the fourth application for a loan Case No. 92/ Case No. 477/ Case No. 87/2010 Equal Treatment Authority 30

33 In this context, an interesting question of competence emerges from the complaints which occurred frequently in 2010 which claimed that the complainant was not given a customer card in a supermarket because of his/her age. Besides opportunities for, these cards also provide credit lines for shopping; thus the question arises in cases of rejected card applications whether the reason for rejection was the applicant s age as a risk factor. In spite of the fact that the use of such cards and their rejection raise similar questions as the above-mentioned credit and loan cases, and the competence of the PSzÁF does not extend to their investigation. The reason for this is that these cards are not considered means of payment replacing cash. 42 The Authority follows the principles described above elaborated for the examination of the crediting practices of financial service providers in judging the lawfulness of differentiation due to the fact that these cases are rather similar. A 85-year old complainant faced discrimination based on age when he/she intended to take up insurance for an organised trip with a travel agency in the countryside. 43 Upon his/her inquiry a printed form was given to him/her, according to which the insurance company does not issue insurance policy at all to customers over 80 years of age. He/she found this risk-avoiding solution unjust since he/she would have been ready to pay a higher fee with regard to his/her age. In addition to this, his/her trip now became uncertain. At the hearing, the insurance company expressed regret that they did not properly inform the complainant about the services available to him/her. The subject of the procedure recognised that the criterion objected to does exist concerning the main insurance product and is based on the tradition of the trade, but there is a replacement product that includes all the services required by the complainant which does not have an age limit. The office offered the complainant this product. The parties reached an arrangement within the framework of the procedure, since the complainant considered the case closed with the above-mentioned offer. The insurance company declared that it will continue this practice in the future, i.e. it remains committed to exercising equal treatment towards customers who are over 70 years of age, and it will instruct its business partners to do the same. The insurance company claimed that it is a tradition of the trade that for risk-avoidance reasons 80 years of age is the upper limit, however, this is expected to be revised soon. This provider can serve as a good example in this field since it offers a supplementary service that resolves the problem of age-related insurance risks and the problems faced by more and more elderly people who are still active. At the same time, the case shows how important precise and detailed information and the quality of communication are in the services sector. Combating discrimination based on age is important in this context, but, although this type of discrimination is significant, it is important to emphasise that discrimination in providing loans and other financial services takes on other forms, 44 as well. E.g. in one case, the Authority established a violation of the law where the protected characteristic was that of refugee status, as well as in another case where, in a property value assessment required for a credit application, the firm performing the assessment automatically gave the worst possible qualification for a house that was in the part of a settlement which was known for being mainly inhabited by Roma families EBH/1124/ Case No. 715/ Case No. 715/ Case No. 795/ Equal Treatment Authority

34 II.2.2 Failure to comply with the obligation to ensure accessibility The National Federation of Disabled Persons' Associations declared 2011 the year of accessibility. Equal access to public services represents an expanding scope of cases dealt with by the Authority, since the expiration of the deadlines for providing accessibility allow for a complex examination of the implementation of the accessibility requirement. With Act XCII of 2007, the Hungarian Parliament ratified the UN Convention on the Rights of Persons with Disabilities, adopted in New York on 13 December 2006, and Article 9 of which provides that, To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. In compliance with the spirit and the requirements of the Convention, pursuant to Article 4 of Act XXVI of 1998 on the rights and equal opportunities of persons with disabilities, public services include: fa) every activity of a public authority including official, governmental and any other administrative and judicial activities furthermore the activities of the Parliament, the organs obliged to report to the Parliament, the Constitutional Court, the parliamentary commissioners, the prosecutor general as well as the national defence and police organs in exercising their spheres of authority; fb) media services provided by entities maintained by the state, furthermore the education, public education, public collection, cultural, scientific, social, child welfare, child protection, health care, sports, youth and employment services, provisions and activities; fc) all activities carried out by local and minority governments in exercising their competences including in particular official and other administrative activities as well as the services, provisions and activities provided by local and minority governments, non-governmental and church maintainers and the institutes maintained by them and financed by public funds as per fb); fd) any client service activity functioning under a public service system; and fe) any public services activity performed on the basis of an administrative licence or based on an administrative obligation that maintains the public services of a settlement or part of a settlement, and its use is not and must not be restricted. Article 7/A (1) of the Disability Act provides that taking into account the specific needs of different groups of disabled persons equal accessibility to public services must be provided to disabled persons; this means that the service concerned should be accessible, dependable, understandable and perceivable to all disabled persons, in particular those with impaired mobility, eyesight, hearing, and mental and communication functions, with an independence corresponding to the condition of the individual. Furthermore, the building in which public services are provided should be accessible to everyone, everyone should be able to enter their premises that are open to the public and safely exit these in case of an emergency, and the objects, facilities and services available in the building should be equally accessible and usable for all. Concerning the deadlines set for providing accessibility 46, requirements pertaining to public services falling within state and local government competences, activities functioning under the customer service system and public transport should be distinguished. 46 See: Position No. 309/1/2011. (II.11).TT. of the Equal Treatment Advisory Board on the obligation to provide accessability ( 2011, last accessed 31 March) Equal Treatment Authority 32

35 1. The deadline for providing equal accessibility to public services falling within the scope of authority of the state already functioning as of 1 April 2007 was 31 December The deadlines for ensuring accessibility to services provided by local governments are set out in appendix of the Disability Act. 3. Concerning public services functioning under the customer service system as well as public services provided on the basis of statutory licences or statutory obligations that provide public services to settlements or parts of settlements already functioning as of 1 April 2007 pursuant to Article 7/B (4) of the Disability Act, equal accessibility should be provided by 31 December 2013 to the sections of buildings providing public services and are open to the public. Regarding public services that began functioning after 1 April 2007, i.e. after the amendments of the Disability Act in line with the spirit of the UN Convention came into effect, these should already comply with the requirement of complex accessibility. In one case which was associated with accessibility to public services provided under the customer service system, the complainant, who was in a wheelchair, claimed he/she was discriminated against on the basis of his/her disability by a gas supply firm which had been functioning near his/her home since 1 January 2010,, when the firm did not provide him/her access to its customer service office, and therefore equal access to public services. The representative of the subject of the procedure argued in his/her statement that they did not violate the requirement of equal treatment because in their opinion they should provide for the accessibility of the building only by 31 December The Authority did not accept as an excuse that the firm which began operating on 1 January 2010 considered its new customer service office a public service that had already been functioning since 1 April 2007, and argued that earlier a power supply company used to operate a customer service office in the building. Based on the available documents, the firm s customer service office should not be considered a public service which was already functioning as of 1 April 2007 since the building had been acquired by the firm in April 2009 and it launched service provision within the customer service system on 1 January Concerning its customer service office, the subject of the procedure, the gas supplier, could not escape its obligation of providing accessibility, therefore, it could not refer to the 31 December 2013 deadline. The Authority concluded that the gas supplier had violated the requirement of equal treatment. Besides prohibiting the continuation of the unlawful behaviour in the future, the Authority did not apply any other sanctions because the behaviour of the subject of the procedure displayed during the procedure (construction of a ramp, replacement of doors, etc.) allowed the conclusion to be drawn that the goals concerning prevention and the effect of deterrence would be achieved anyway. The Authority emphasised in this case, as well, that by establishing the deadline of 31 December 2013 for the obligation service providers to provide accessibility, the legislators intent was not that service providers focus on the final deadline and do not take any measure before that, but with regard to the principles of the Disability Act they should take measures in order to provide equal accessibility to disabled persons as soon as possible, also taking into account their circumstances and financial possibilities. In such cases, the Authority increasingly seeks for an arrangement to be reached between the parties in the course of the procedure, since within the framework of the arrangement the parties can oblige themselves to rectifying the situation which is the subject to the complaint within a reasonable timeframe. An arrangement was reached in proceedings where the complainant complained that a state-owned company providing public services violated the requirement of equal treatment in relation with his/her disability when, as a person in a wheelchair, he/she was unable to 33 Equal Treatment Authority

36 access the section of the building designated for disabled persons, and the service was performed under objectionable circumstances. According to the arrangement, the subject of the procedure agreed to provide, with a fixed deadline, proper parking facilities in front of the section of the building designated for disabled persons, to ensure easy access and exit to and from the building, furthermore that they would provide for the unrestricted use of the lavatory constructed for disabled clients. The subject of the procedure took on the obligation, furthermore, to repair the heating system and to provide for permanent lighting in the section of the building designated for disabled persons by the beginning of the heating season. They would provide the suitable types of furniture and in such a quantity in the customer lobby so as to ease the movement of disabled persons. Additionally, the subject of the procedure agreed that they would immediately send a staff member to the designated section of the building in order to reduce waiting time. In light of the considerable costs of the task, current legislation contains more lenient rules concerning certain aspects of public transport insofar as the issue can be regulated under the jurisdiction of the Member States. Article 29 (1) of the Disability Act sets forth that transportation systems, means of public transport, passenger traffic facilities, signalling and information equipment unless any statutory regulation provides otherwise have to comply with the criteria set out in Article 8 47 by 1 January 2010 at the latest. Article 87 (12) of Act CLXXXIII of 2005 on Railway Transport has set the deadline for ensuring accessibility for 1 January The Act says that the preconditions of equal access should be established on railway vehicles providing passenger transport based on public traffic timetables as well as in the sections of railway stations and stops serving passenger traffic not later than by 1 January Article 17 (9) of Act XXXIII of 2004 on Scheduled Bus Passenger Transport states that the preconditions of equal access should be ensured on buses involved in passenger transport based on public timetables as well as in the parts of bus stations and stops serving passenger traffic gradually, but not later than by 1 January Regulation 1107/2006/EC of the European Parliament and of the Council concerning the rights of disabled persons and persons with reduced mobility when travelling by air 48 prescribes the obligation to ensure accessibility at airports and aircrafts as well as concerning air transport services from 26 July 2008, and regulates in detail the manner of implementation. The investigation of complaints related to this falls under the jurisdiction of the National Transport Authority Directorate for Air Transport and/or the National Consumer Protection Authority, but the complainant may also turn to the Equal Treatment Authority, insofar as this is justified by the nature of the issue. It is especially important in this respect that the authorities concerned stay in contact and inform each other on complaints and proceedings on this subject. The Authority investigated the adequacy of access routes in relation with services (railway passenger transport, accessibility of stations) where the deadline for ensuring access is 1 January 2013 but the obligated party has already begun the altering of the building and within that the building of access routes, as well. 49 The interesting thing about the case is that the subject of the procedure didn t point out the fact that the deadline for providing access had not yet passed, and also the Authority, following Position No. 384/2008. (I. 23.) TT 50, 47 Article 8 of the Disability Act: Transport systems, as well as means of public transport, passenger traffic facilities including signalling and information equipment are to be suitable for safe use by disabled persons. 48 PRM - passengers with reduced mobility. 49 Case No. 1143/ The exemption deadline means that the party concerned cannot be obliged to begin ensuring accessibility until the expiration of the deadline. If the obligated party starts with renovations or reconstruction of places where public services are provided, they cannot be exempted from his obligation of providing access routes only on the basis of the deadline. The deadline allows postponement for ensuring accessibility, but in case of projects under construction an exemption is only possible if the subject of the procedure poves that in omitting the task he acted in line with Article 7 (2) of Equal Treatment Act. Equal Treatment Authority 34

37 duly investigated the adequacy of accessibility, and concluded that the solution (elevator instead of a ramp) objected to in the complaint was justified in the case concerned, and therefore the obligated party had provided an adequate access route. The requirements of making buildings physically accessible are set forth in Government decree 253/1997 (XII. 20.) on National Settlement Planning and Construction Requirements (OTÉK), but no regulations or standards exist in the area of info-communication accessibility. In sum, although the deadline for providing accessibility has already passed in many cases but access routes have not been provided for, with the argument that the financial resources are lacking, and there are professional uncertainties concerning the actual execution. For the time being, however, this might not be the biggest problem in this field, but rather that the need for and the aspects of making spaces accessible have not yet been integrated into the minds of neither the contractors nor the designers/builders. The construction project approach with accessibility in mind as universal engineering aspect 51 and the currently accepted definition of disability 52 have not yet become part of public thinking. The Authority strives to find solutions with the contribution of clients in the proceedings conducted, and to make people aware that providing accessibility requires collaboration and joint thinking with those concerned rather than extensive expenditures in both the planning/designing of a building or service and in using it. Accessibility is important to all of us since an environment that is easier to use and live in comes into existence through it. In each case, the Authority tries to find a solution adjusted to the financial capacities of the obligated party, however experience shows that almost every obligated party refers to the high costs of providing accessibility, although the abandoning of habits in thinking and planning/designing schemes often represent an even bigger sacrifice than financial expenditures. II.2.3. Telecommunication services In the proceedings launched with the Authority before 2010, complaints related to telecommunications services represented the third most significant thematic group. Those cases are to be mentioned under this context where the complainants criticised age-related benefits offered by the service provider. 53 In such cases the service provider succeeded in excusing its discrimination by referring to Article 7 (2) of the Equal Treatment Act through proving that the wealth, income, consumption habits and living situation of people under 26 years of age significantly differ from that of other age groups. The members of this age group do not earn their own income or just limited amounts, are in their studies or have just finished them, live in the same household as their parents, their consumption habits are characteristic (e.g. increased use of mobile phones, importance of the type and colour of the device), and are not bound to a specific service provider. All this justifies that the service provider treats them as a special group and applies benefits tailored to them. As the Authority explained in relation to other issues, the goal of benefits offered by commercial entities for business policy considerations is to serve, maintain and provide competitive services to easily 51 The concept of universal engineering is a preventive way of thinking and designing strategy that takes into consideration at the beginning of the planning process the differences in the abilities of users. By applying this planning strategy, products are developed that without special design and aptation offer full and independent use for as many individuals as possible. In the current case, the definition products refers to the widest variety of commodities and outfits and beyond this to all environmets, buildings, services and infrastructure created by man. I.e. universal engineering is nothing else than a way of designing/planning that starts out from human differences by taking into account both social and equal opportunities aspetcs. The main goal is that the same product serves the needs and requirements of users varying across time and situations. The differences among people in terms of age, culture and other human attributes has reached unprecedented levels, thus universal planning/designing as method for providing equal opportunities and democracy has become more and more conspicuous in recent years. Its justification is supported by the fact that with the European labour market and trade getting more intensive, the social systems and environments of each country should ensure the integration of individuals with varying abilities and cultural backgrounds. Guide to the establishment of equal access to public services, Public Foundation for People with Disabilities, (as of 16 March 2011). 52 I.e. the acceptance of disability as a status deriving from the relationship between the individual and his/her environment, and thus it cannot be considered a problem that concernes only the members of conventional disability groups. It may occur at any time that the individual, due to his/her age, illness, lack of command of a foreign language or any other reason gets in a situation where their environment is no longer safe or perceivable for him/her. This approach represents a very important difference in views, and real accessibility can hardly be achieved without a change in views in this respect /2010., 1305/ Equal Treatment Authority

38 distinguishable groups on the basis of their specific needs, attributes and consumer behaviour. Taking into consideration the real differences between individuals or groups in relation with the service concerned is not discrimination but a rational business reaction. One complainant criticised that he was not able to use some services offered by the telecommunications service provider because he didn t have a permanent address. 54 Pursuant to Article 8 (t) of the Equal Treatment Act, homelessness is qualified as any other status, but only a few proceedings have been lodged with the Authority, probably because the rights consciousness of the individuals concerned and the ability to promote their interests are poor. 55 Although it dealt with an important issue, namely the peculiar aspect of the multi-level discrimination of homeless people, the current case was extremely simple to judge from a legal point of view since Article 159/A of Act C of 2003 on Electronic Communication stipulates that in order to be able to supply information to intelligence agencies and national security services when requested, service providers must record the home address of customers, in addition to other information. Thus, as the discrimination applied by the service provider was based on a law, the complaint had to be rejected. II.2.4. Services offered by stores and catering establishments The most typical cases related to the distribution of goods and provision services are where the complainant claims that due to his/her characteristic pursuant to Article 8 of the Equal Treatment Act, he/she could not enter an entertainment establishment, a shop, a place of accommodation or didn t receive service or received inadequate service. Through his legal representative, a complainant turned to the Authority claiming that he was not admitted to a pub in the country-side because of his Roma ethnicity. The complainant wanted to enter the pub in the early morning hours with three other persons not of Roma ethnicity and his spouse, but they saw written at the entrance that a closed event was being held in the pub. The complainant nonetheless asked one of his colleagues to see whether the event was really limited to invited participants. An employee of the pub (the security guard) told them that there was only a problem with the complainant, the others can go in. He said that there was a fight in the pub involving some Roma, for this reason the police stayed nearby, and he could not be admitted. The complainant protested and emphasised that he was not involved in the fight and considered this treatment racism. Based to the information received from the police department, several individuals filed complaints that they were refused service in pubs because of their ethnic origin. The Authority investigated in this case whether the complainant was really rejected and whether this was in relation with his Roma origin. The business that was the subject of the procedure had to verify either that they did not deny service to the complainant, or if they did, the reason for this was not the Roma origin of the complainant. The business did not deny that the complainant was not admitted or that he didn t receive any service, and it did not contest that the complainant is Roma. The pub justified the refusal of service by arguing that the complainant was member of a group which was known to be cause disorder, and the pub was justified in denying him service because of earlier disorder and threats that they had experienced. The subject of the procedure was not able to specifically name the individuals involved, but claimed that the employees on duty decided in each case whom they rejected since they 54 Case No. 230/ The recognition of this motivated the Parliamentary Commissioner Civil Rights to deal with the realisation of the rights of homless people in the framework of the project Human dignity without barriers : In his work the ombudsman has to take into consideration that for social groups in need, those least capable of representing their own interests and rights, he can be considered the assigned representative of rights and interests, and the formulator of claims. It is undisputed that the homless living at the periphery of the society are especially such persons. Thus it is also beyond doubt that the Parliamentary Commissioner has several obligations pointing in the same direction in relation with homless people: he has to act through his influence and consistent positions for the restitution of the human dignity of people living on the periphery. Project investigating the enforcement of the constitutional rights of the homeless, ÁJOB Project booklets 2009/2, 13 p. (as of 16 March 2011) Equal Treatment Authority 36

39 were able to establish by sight whether the individual concerned belonged to the disorderly group of people. The executive of the business which was the subject to the procedure stated at the trial that he had already met some members of the disorderly group, but he was not able to identify the complainant as a member of the group. This means that the subject of the procedure was not able to provide evidence to substantiate their defence, even though the justification for exculpation was their obligation pursuant to the rules of shared burden of proof. The Authority does not contest that a service provider may deny service based on individuals causing disorder or threatening the personnel, nevertheless, this is only lawful if it does not provide an opportunity for abuse and does not lead to the complete rejection of an entire ethnic group. The rejection must be consistent and objective, and the establishment should be able to unambiguously identify individuals concerned. In this particular case, it could be concluded from the statements of the subject of the procedure that it was not clear who belonged to the rejected group or exactly how many persons were affected by the rejection. All the witnesses testified that the complainant was denied service because of his Roma origin and not because he had earlier fought in the pub, i.e. the subject of the procedure punished those belonging to the Roma ethnicity, including the complainant, because of the alleged disorderly behaviour of one Roma group. In spite of multiple requests made by the Authority, the subject of the procedure did not name those on duty at the pub when the discrimination occurred, i.e. who were able to decide by looking at the complainant whether he was a member of the disorderly group. Neither did he attach the complaints lodged earlier against the members of the disorderly group. All in all, he was not able to support with evidence even one of his statements, and as it did not provide a statement, the Authority was not able to interview further witnesses in order to find out how and why the personnel decided to reject certain individuals and to deny service to them. In the course of applying legal consequences, the Authority sanctioned the multiple omissions and the ill-intentioned behaviour of the subject of the procedure. Among other things, the special feature of the protected characteristic made the case interesting in which the hotel subject to the procedure denied service to the complainant with the argument that he had caused damage to the hotel s property at his recent stay in the hotel and endangered the health of the hotel employees by his status. 56 The complainant suffered from psoriasis and the subject of the procedure argued in his exculpation that he denied service in order to protect the basic right of his employees to health, and the other reason of the rejection was the damage caused earlier to the furniture of the hotel. The Authority established that the justification as per Article 7 (2) (a) of the Equal Treatment Act was not well founded. By violating the requirement of equal treatment, the subject of the procedure violated the fundamental right of the complainant to human dignity and; on the other hand, the employer had to enforce the right to health in the framework of labour safety through the obligation of providing a healthy and safe work environment. The right to health set forth in the Hungarian Constitution is a so-called third generation fundamental right that established an obligation for the state, and the state complies with that obligation by elaborating labour safety regulations. The subject of the procedure is obliged to observe these requirements. It would have meant in the current case that he trained his employees about the nature of the illness concerned and in particular about the fact that it was obviously not contagious, and should have provided them with suitable uniforms for performing their work (cleaning), instead of denying service to guests who seem to be dangerous on the basis of the impressions and the insufficient medical knowledge of his employees. Due to the fact that the subject of the procedure did not provide 56 Case No. 1236/ Equal Treatment Authority

40 documentary evidence of the damaged hotel furniture and his lost profit because the room could not be rented out, only by the testimonies of his employees, which the statements of the complainant and her child refuted, applying the rules of evidencing set forth in the Equal Treatment Act, the Authority established that the justification of the subject of the procedure was inadequate and that a violation of the law had been committed. Another protected characteristic (citizenship) made a case subject to several proceedings in 2010 interesting. Several EU citizen pensioners contacted the Authority claiming that the spas in Hungary did not apply equal criteria for using their services (mainly at the entrance), which in their judgment fundamentally violated EU law. The Authority investigated Hungary s and the EU s legal framework. Article 12 of the Treaty establishing the European Community (TEC) says that any discrimination on the basis of nationality is prohibited in the areas regulated by the TEC, therefore also in service provision. Pursuant to Article 49 of the TEC, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. Pursuant to the interpretation of the EU Court of Justice (see Luisi and Carbon case), the freedom to provide services includes the freedom to use services. The TEC only allows the possibility for exemption in the protection of public security or public health in case of distinction between national and international entities (Article 46 TEC). Pursuant to Article 20 (1) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, Member States shall ensure that no discriminative requirements apply to service users with reference to his/her nationality or place of residence. Paragraph (2) states that Member States shall ensure that the general conditions of using the service published by the service provider must not contain discriminative provisions according to the nationality or place of residence of their users, however, it does not completely exclude the possibility of setting different conditions if objective criteria directly justify it. Pursuant to Paragraph (94) of the Directive s Preamble, the prohibition of discrimination in the internal market means that access to public services must not be denied to or restricted for the users of a service and in particular for the consumers by applying requirements in the general, publicly accessible conditions that are related to nationality or place of residence. It does not count as unlawful discrimination against the law, however, if provisions concerning differentiated tariffs and conditions to be applied to services are included in the general terms and conditions, if objective reasons justify such tariffs, prices and conditions varying in each country such as surplus costs actually incurred because of the distance, the technical features of providing the service, or deviating market conditions such as higher or lower demand due to the seasonal nature of the service, different vacation periods in the member states, different pricing of the competitors or extreme risks related to the regulations deviating from the Member State of residence. Besides the primary sources of EU law, a large number of decisions of the EU Court of Justice have had direct relevance in the issue concerned. The EU Court of Justice stated for instance in case C-45/93 Commission vs. Spain that the national regulation that regulates admission to the museums of a Member State must not be discriminatory towards tourists arriving from another Member State. The EU Court of Justice stipulated in case C-388/01 Commission vs. Italy that the Italian government violated its obligations under Articles 12 and 49 of the TEC by providing preferential admission to local museums, monuments, memorials and similar facilities exclusively for local residents of Italian nationality and over a specific age, and excluded all tourists from these benefits living in another state or who were not local residents but met the age conditions. In addition, it s also relevant that the European Commission launched obligation violation proceedings Equal Treatment Authority 38

41 against Hungary in October 2006 because of its preferential system of discriminating visitors of tourist museums and monuments. The Commission criticised that, pursuant to the Government Decree 194/2000. (XI.24.) on benefits for visitors of museums, Hungarian pensioners older than age 65 could visit the institutions free of charge, while this preferential treatment was not extended to the citizens of other EEA states. The Hungarian Government recognised that the Hungarian regulation was in conflict with EU law, and accordingly it amended the above-mentioned government decree in October 2007 so that EEA citizens can visit the institutions concerned free of charge if they are over 70 years of age, and are entitled to 50% allowance if they are under 70 but over 62 years of age. Subsequently, the Authority investigated compliance with the Hungarian law, i.e. whether the behaviour of the service provider subject to the complaint infringed the requirement of equal treatment pursuant to the provisions of the Equal Treatment Act. First, the Authority examined the existence of the complainant s protected characteristic and concluded that their citizenship should have been considered as any other status as specified in Article 8 (t) of the Equal Treatment Act. Afterwards, the Authority examined whether the behaviour of the company subject to complaint violated the provisions of Article 5 (b) and Article 30 of the Equal Treatment Act on the sale of goods and provision of services. Pursuant to these rules, the requirement of equal treatment applies to any legal relationship under which services are provided or goods are sold on premises open to customer traffic. Furthermore, it is an infringement of the requirement of equal treatment in particular if, based on a protected characteristic listed in Article 8, if the provision of services or the sale of goods is denied or omitted in institutions established especially for catering and accommodation (pensions), or commercial, cultural and entertainment purposes, or if the services and goods sold are of substandard quality, as well as if signs are displayed which suggest that someone or a group is excluded from the services or goods being sold/provided there. On the basis of these Hungarian and EU regulations, the Authority concluded that the subject of the procedure violated authoritative EU law by its behaviour, and on the basis of Article 5 (b), Article 8 (t) and Article 30 infringed and continued to infringe the requirement of equal treatment. As a result of the administrative procedures and the sanctions applied as a consequence thereof, the spa concerned abandoned its discriminatory practices. Among the cases lodged because of the denial of services, the cases when disabled individuals are not admitted with their guide dogs constitute a special group. Although the legal regulation has been quite clear in this respect for a long time, 57 the Authority s position even prior to the adoption of the new regulation was consistently that the rejection of individuals using a guide dog is prohibited and a behaviour conflicting with the requirement of equal treatment. The Authority receives complaints from persons with impaired vision claiming that they are not admitted with their dog to shops selling food for hygienic reasons. However, since the use of their seeing-eye dog is necessary for them in their everyday life, these people consider references to general public health regulations unfair and unlawful. The Authority first analysed this legal situation in its procedure conducted against a fast food restaurant in Budapest where the complainant was repeatedly denied entry with his guide dog. The representative of the restaurant subject to the complaint did not deny the occurrence, but argued that the admission of big dogs to restaurants has health risks that cannot be neglected. He also emphasised that if the prevailing regulations do not allow the exclusion of blind persons dogs, he will act accordingly in the future, although he had no information of such a regulation. The Authority investigated whether the provisions of the Equal Treatment Act concerning the sale of goods and use of services 58, together with other specific regulations on the rights of disabled persons ensured these debated rights for disabled persons. The Authority concluded that entering and remaining with seeing-eye dogs 57 Decree 27/2009 (XII. 3.) SZMM on the rules of training, testing and usability of guide dogs. 58 Article 5 (b), Article 30 Equal Treatment Act. 39 Equal Treatment Authority

42 in areas providing public services is allowed both by Article 7/C of the Disability Act and by Article 9 (1) of the decree 27/2009. (XII.3.) SZMM on the rules of training, testing and usability of guide dogs. Article 4 (fe) of the Disability Act provides, on the other hand, that stores selling food shall be considered entities providing public services. Accordingly, the Authority prohibited the continuation of discrimination by the subject of the procedure and ordered the publication of the anonymous version of the decision on the Authority s page. The publication served the purpose of calling the attention of service providers and users to the requirement of equal treatment and to inform the broader public that the admission of individuals with impaired vision must be ensured. Concerning the application of sanctions, the Authority could not neglect the fact that the legal background of the admission of seeing-eye dogs to stores selling food was not clarified for a long time. Based on the misleading statement of a representative of the National Public Health and Medical Officer Service (ÁNTSZ), a large number of firms denied admission with seeing-eye dogs to stores selling food. 59 Pursuant to this regulation, admission with a seeing-eye dog had no legal hindrance, but those who exercised this right could be punished with a fine on the basis of a government decree on misdemeanours. Legislators eliminated this legal anomaly as of 1 January After this, the amended provisions of the Disability Act and the above-mentioned SZMM decree explicitly recognised the fundamental right of disabled persons that they can live with equal dignity and equal rank only with the contribution of a helper, and can exercise the fundamental rights vested with every citizen only in this way. The judgment of such cases is unambiguous in both the Authority s and the courts practice, and they get receive broad media publicity, which significantly contributes to the preventive effect of such judgments. In another case, a complainant attempted to enter a clothing store with a pram but a sign prohibiting admission with a pram was displayed in the shop. The complainant turned to the Authority because, in her opinion, the placing of such a sign constitutes discrimination because of motherhood. An arrangement was reached by the parties, which the Authority approved by a decision. According to the arrangement, the limited company operating the shop immediately ordered the elimination of the signs denying entry with prams, promised to hold the shop keeper accountable, and apologised to the complainant. It has to be emphasised concerning the denial of services that the complaints rejected in this field are as informative as those where the Authority established discrimination. In one of the complaints the complainant criticised in that he was continuously followed/watched in a clothing store while walking around and trying on clothes, and after making his purchase, he was picked out for inspection. He believed that his Roma origin played a role in this. The complainant asked the Authority to investigate the behaviour of the entity subject to complaint. Due to the fact that the complainant met his obligation of presumptive proof as required by Article 19 of the Equal Treatment Act concerning his protected characteristic and his personally suffered, specific injury, in line with the rules of shared burden of proof, the subject of the procedure was obliged to prove its right to exculpation. The subject of the procedure did not refute the basic facts (observation, picking out, inspection), but provided evidence that there was no causal relationship between the complainant s protected characteristic and the injury suffered by him. On the basis of the evidence presented, the Authority accepted the justification of the subject of the procedure according to which the reason for examining the complainant was not his Roma origin but that the store personnel presumed that he intended to leave with a jacket on his arm without 59 Ombudsman s report No. OBH 1662/2008 Equal Treatment Authority 40

43 paying for it. The basis of this presumption was that the complainant entered the shop with the intent to buy something with the same jacket on his arm that was available in the shop, too, and a similar jacket was missing from the inventory. Furthermore, the suspicion was supported by the fact that the complainant put the jacket into his bag immediately prior to payment. The complainant recognized this part of the events, but disputed whether the real reason for his being singled out was the putting away of the jacket. Additionally, it could be established that just the complainant referred to his Roma origin as an aspect in the investigation room. Although it was not possible to clarify during the evidence procedure whether the saleswoman really said, many Gypsies steal, it could be concluded unambiguously on the basis of the statements of the complainant and his representative, as well as of the testimonies that both the complainant and his representative (father) were frequent buyers in the shop subject to complaint where they did not face a similar problem earlier. Taking this into consideration, the Authority accepted the justification of the subject of the procedure and concluded that there was no causal relationship between the complainant s Roma origin and the injury suffered, and therefore rejected his complaint. With regard to the fact that the subject of the procedure proved that the complainant was not investigated because of his Roma origin, the circumstances of the case could not be investigated in the framework of an administrative procedure. The Authority pointed out to the complainant, however, that he could enforce his demands related to his injury suffered in a personality rights lawsuit in the courts. 41 Equal Treatment Authority

44 II.3. Education In recent years, the Authority has received many complaints concerning the rights of children with special education needs 60 and children of Roma origin. It can be concluded from the complaints that the concerned children and their parents are not always able to exercise their rights. In most cases concerning schoolchildren with special education needs, the individuals and entities providing public education services are prepared to discuss this together and to find an arrangement, since frequently a lack of communication and legal knowledge play a role in the development of the problem. It can often be observed in cases launched in relation with children with special education needs that local governments and public education institutions do not provide the human and technical conditions in spite of the resolution of the expert and rehabilitation committee designating kindergartens or schools, or the pupil is rejected with the argument that their founding document does not include care for handicapped children in integrated education. The Authority came across blatant cases where the local government deleted the provision of educational services to groups with special education needs from the founding documents of all public education institutions of the settlement with the hope that through this they are exempt from this obligation. Neither the Authority nor the court in an earlier decision accepted this justification. 61 The Act on Public Education provides that parents have the right to request the support of the mayor in the settlement where the child with special education needs lives or resides in providing the preconditions required for the education/teaching in the local kindergarten or school. In its above-mentioned decision, the court set forth that disabled children should be brought up to the same educational situation as other schoolchildren, i.e. it has to be ensured that they can attend the institution designate to them according to their place of residence. Should a pupil be deprived of this right, this represents a violation of equal treatment in every case. Neither the local government nor the public education institution is exempt from this obligation because the provision of that specific group of disabled children is not included in their founding document, therefore obviously also not if the maintaining institution has deleted this from among their tasks. This means that even if the provision of disabled children eligible for integrated education is not included in the founding document of an institution, the mayor of the settlement is not exempt from his/her obligation and must solve the education of the child in line with the Public Education Act. A parent asked for the Authority s help because a primary school maintained by the local government and designated for her autistic child, who was eligible for integrated education, did not provide the necessary human and material resources, and the local government as the maintainer deleted the integrated education and teaching of autistic pupils from the founding documents of all public education institutions of the town. 62 In the proceedings, the local government concerned and the education institution were open to reaching an arrangement and the complainant did not refuse this. Before concluding an arrangement, the local government reinserted the integrated education of autistic children into the founding documents of its public education institutions. In the arrangement, the parties stipulated with a deadline among other things the introduction of a tool database of individually tailored autism-specific support, the elaboration of a system of person-specific rules and benefits, the involvement of a pedagogical assistant in the teaching and continuous professional consultation between the parent(s) and the teacher of the disabled child, as well as with the class teacher. The local government stipulated in the arrangement that following the revision of their founding documents, the public education institutions revised their curricula and from then on provided for the education of children with special education 60 Act LXXIX of 1993 on public education, Section 121 (29) 61 1.K.34110/2006/8. Metropolitan Court. 62 EBH/962/2010 Equal Treatment Authority 42

45 needs. The local government agreed to hire a teacher with autism-specific qualifications for the child and to provide for the child to attend special training courses. The Authority received complaints in this year, as well, criticising direct or indirect discrimination, harassment or illegal segregation of Roma in educational institutions. An unprecedented arrangement was reached before the Authority in a segregation case between the local government, the public rights protection foundation and the local Roma minority government. 63 A foundation representing the interests of disadvantaged children turned to the Authority against the primary school of a settlement and the responsible local government claiming that the school violated the right to equal treatment of an unspecified number of pupils because of their Roma origin, skin colour, social origin and financial status. In cases concerning the segregation of Roma children, the establishment of the ethnicity of pupils is often difficult. The education institutions and their affected by segregation reject accusations of the segregation of Roma children with reference to Hungary s data protection regulations, saying that they have no information on the ethnic origin of pupils because there are no formal records. 64 In 2009 the Parliamentary Commissioner for the Rights of National and Ethnic Minorities rights and the Parliamentary Commissioner for Data Protection issued a joint report on the results of their investigation into the handling of ethnic data. In the report they elaborated a proposal for entities dealing with discrimination and racist crimes by establishing so called primary and secondary considerations on the basis of which the responsible entities may presume that a person belongs to a specific minority. According to the proposal, skin colour, traditional clothing and other external signs, first names and family names typical among the minority concerned, the names of parents, place of residence, being known as member of a minority, word use and accent are considered primary aspects. Pursuant to the report, if two of these primary aspects exist, the person concerned can be presumed to belong to the minority. Therefore, in the proceedings launched on the basis of the complaint described above, in order to establish the ethnic origins of pupils, we visited the classrooms together with the head of the local minority government and established the ratio of Roma pupils in each class on the basis of their skin colour and the statement of the chairman of the local minority government concerning their belonging to the minority. The public interest foundation also argued that the talent development program of the school results in the segregation of groups of pupils, since Roma pupils are not eligible for talent development programs and with this they are excluded from advanced level education. The information in the records available for the identification of the ethnic origin of pupils included in the talent development program of the school proved to be sufficient. Namely, in the investigated settlement, Roma families typically live in two streets, thus the home addresses served for the ethnic identification of pupils. Furthermore, the family names of pupils and their situations of multiple disadvantage also alluded to their Roma origin. On the basis of this information we were able to establish from the list the approximate proportion of Roma pupils involved in the talent development program. The investigation was concluded with an arrangement between the parties, therefore the Authority could not make a decision on the case. The arrangement between the parties can be considered a good example because the school, the local government and the Roma minority government assumed obligations (among others of the extension of the talent 63 EBH/426/ Pursuant to Article 2 (2.a) of Act LXIII of 1992 on the protection of personal data and the disclosure of data of public interest, personal data relating to racial, or national or ethnic minority origin are considered special data. 43 Equal Treatment Authority

46 development program) beyond the obligation that the Authority would have imposed on them in its decision making position. In another education-related case, the parents stated that one of the teachers of the primary school where their child was a student applied harassment in relation with the ethnic origin of their child. 65 At the end of the school year, the school obliged the child to take an equivalency exam because the child was frequently absent during the year. The pupil s head teacher promised to provide a set of sample questions for preparation for the exam, but this was not done. It turned out during the distribution of certificates that the pupil had failed the exam, and the student asked his/her teacher in a private conversation why he/she not receive the sample questions as promised. According to the complaint, the child received the answer: it does not count for your kind, anyway. The director of the school informed the Authority that the pupil had 210 hours absence in the school year and from this 86 hours were unjustified. The parents did not appear at any of the parents meetings or consultation hours during the school year. The school called the parents twice and sent a warning because of the child s absences. The school director disputed that the sentence quoted in the complaint had been said in the institution since no similar issue had ever occurred there with any of the teachers. The director stated, furthermore, that a programme advancing the education of ethnic minorities had been conducted for many years at the school under his/her leadership and, up until the 2008/2009 school year, talent development preparatory programs were implemented. The child s head teacher stated that the complaint of the parents had no basis in reality at all and the alleged statement or any other reference to the ethnic origin of the pupil was never said in public or in any other place. It could not be concluded on the basis of the contradictory declarations whether the alleged statement was said or not, and we decided not to confront the parties with one another due to the age and situation of the child. Nevertheless, harassment could not have been established even with evidence of the statement, as the statement in question could not have been aimed at developing a hostile, degrading or humiliating environment against the pupil since neither the class nor any of the teachers would have heard it. Furthermore, an intimidating, hostile, humiliating, degrading or offensive environment could not develop because the statement would have been heard at the end of the school year and the new school year had not yet started at the time the complaint was filed. Harassment is rarely exercised on one occasion, it develops mostly as result of a process as a hostile, intimidating, offensive environment around the harassed subject, and this could not be concluded in relation with the current case. The Authority receives complaints concerning the field of higher education, as well, related mostly to obtaining a diploma and to exemption from language exams. In 2010, besides these issues, complaints were also lodged in relation to final examinations and the subject of the final thesis. The Authority accepted lisping as a miscellaneous situation analogous to specified protected characteristics upon the request of a higher-level vocational training student who was not allowed to write an thesis on her selected subject. 66 The student, who has a speech impediment, intended to analyse the development of language in early childhood, but her thesis advisor argued that it would have been contradictory for the student to research this subject because she had a lisp, and also it would have been difficult to evaluate the thesis as a teacher. It can be established that providing assistance as a consultant in the thesis 65 Case No. 1280/ EBH/1444/2010 Equal Treatment Authority 44

47 writing process, as an obligatory requirement in education, can be defined as a teaching service, and the sole argument for denying access to this assistance was in this case the protected characteristic. We considered the lisp to be a basic element of the complainant s personality, since she lived with it every day, and it could only be changed through correction with the involvement of others (e.g. a speech therapist). The argument of the subject of the procedure justifying the discriminative decision of the teacher was not acceptable. The professional opinion that it can be expected for the education of small children that, because of the significance and weight of the speech provided as an example, the caretaker speaks the language perfectly, is not acceptable as an argument regarding the violation in question. The reason for this is that participation in education and the requirements and expectations of the labour market are segregated in time. The goal to be achieved by the teacher s decision and the discriminative act applied to this end were not in a causal relationship. Due to the fact that the thesis is a research-based, written document testing and requiring analysing, formulation and other skills, it cannot serve to measure the oral skills of the student. For resolving the system error that no aptitude test is required to enrol for professional training, it is not an acceptable practice that the teacher has the opportunity to object to any potential deficiencies by the means at their disposal, in the current case by denying assistance as an advisor. With regard to the fact that we did not accept the justification of the higher education institute, we adopted a decision establishing discrimination and as a sanction we prohibited the education institute from unlawful behaviour in the future. 45 Equal Treatment Authority

48 II.4. Health services Articles of the Equal Treatment Act extend the requirement of equal treatment to the areas of social security and heath care, as well. Regarding the latter, the Equal Treatment Act points out that the requirement of equal treatment has to be enforced in health care with special regard to providing health care services. In 2009, 5 decisions were adopted in this area, and in 2010the Authority adopted judgements in 8 cases. In addition, a case launched in 2009 was closed in 2010 by the judgment of the Metropolitan Court of Budapest, which confirmed the Authority s decision that a violation of the law had occurred. Therefore, this decision was analysed together with the decisions made in Among the nine cases investigated, we established discrimination in two cases, two complaints were rejected, four proceedings were discontinued by decree, and the procedure was closed with an arrangement in one case. In most of the complaints received and the related decisions, the subject of the complainant was the treatment of the complainant by the employees of the health care institution based on their Roma origin, and to a smaller extent to their health status, mainly in terms of the admission and treatment of patients. Another part of the complaints did not directly criticise the quality and standards of services provided by the health care system, but in relation to health care requested the Authority to investigate other complaints. Some of these complaints related directly to the health care system (e.g. the risk supplement for physicians, hospital rates) while others only slightly related to it (e.g. circumstances of terminating employment relationships, unjust functioning of health care as a whole). Typically, complaints in the latter category were rejected because of missing documents/evidence or because they fell outside of the competence of the Authority. The following examples show the most significant decisions of the Authority in the field of health care. The Authority established the responsibility of an occupational health service provider for the degrading environment created in relation to the Roma origin and place of birth of a complainant. The complainant used to work in a cement factory for years, exposed to considerable dust, and he was later diagnosed with lung fibrosis. He visited the physician providing occupational health services to the cement factory in order to determine his accident benefits, but the doctor, without any examination whatsoever, gave him a medical certificate that his illness was not work related. In the medical certificate the doctor included that lung fibrosis was considered a genetic attribute in settlement A where the complainant was born and lived, since people got married among each other and every second or third inhabitant of similar age in the village was registered with this illness. In its proceedings, the Authority investigated whether the doctor, by issuing the certificate, carried out harassment as per Article 10 (1) of the Equal Treatment Act, i.e. were the general statements in the certificate concerning the inhabitants of settlement A and their language suitable to create a degrading and humiliating atmosphere because of the complainant s being from settlement A and his ethnic belonging. Pursuant to Article 8 (t) of the Equal Treatment Act, the Authority considered the complainant s originating from settlement A as any other status. Pursuant to Position No. 288/2/2010. (IV.9.) of the Equal Treatment Advisory Body on the interpretation of the concept of any other status, any other status as a protected status can be a characteristic or attribute which constitutes an essential feature of the individual s personality. Pursuant to the position it has to be weighed when considering the acceptance of an individual attribute as a protected characteristic whether the characteristic in question can be considered an essential feature of one s personality, influencing the everyday existence of the person who Equal Treatment Authority 46

49 suffered the injury, whether the individual is able to change it by their own discretion, and whether it has existed as a necessity for a long time independent of the individual s will or decision. In the opinion of the Authority, the origin of the complainant as being from settlement A an almost homogeneously Roma settlement is a circumstance that is beyond his own decision, and an unchangeable circumstance affecting his whole life and is suitable in itself for creating prejudices. The Authority established that although not widely known in Hungary it is without doubt a fact known by the public in the small region in question that settlement A is a homogeneous settlement, the only settlement in the country where the rate of the Roma population is over 96%. According to the situation analysis of the small region prepared in 2005 and published in its Complex medium-term development program, the rate of the Roma minority is considerable in the whole of the region, nevertheless, there is only one settlement, namely settlement A, where the rate of the Roma population is higher than that of the inhabitants of no Roma origin. According to the program, in the year 2004the worst unemployment rate of the region was recorded in settlement A (46%). In the opinion of the Authority, besides his Roma origin, the complainant s settlement of origin also played a considerable role in the attitude of the doctor towards him and in the language used in the medical certificate. According to the defence of the physician, in the certificate he wasn t referring to incest, but pointed out only that it was general knowledge that the inhabitants of settlement A did not choose partners from the inhabitants of other settlements. The doctor maintained his conclusions concerning the genetic reason of the illness and the marriage habits of settlement A. According to the general meaning of the words and also in the complainant s own interpretation, anyone could have reasonably concluded from the statement they marry each other if no special explanation is added that the doctor was referring to the incestuous relations of the inhabitants of settlement A. Even if according to the professional conviction of the doctor not supported by the ÁNTSZ the disease of the complainant could be attributed to genetic reasons, the way of wording the statements in his certificate was suitable to harm the complainant s human dignity. By putting his opinion in writing and stamping it with the doctor s stamp and the company s stamp and issuing it in a form to be used by the complainant in his social insurance matters, the doctor created the possibility that its contents become known to a wider circle and thereby to multiply the injury affecting the complainant upon handing over the certificate. It has to be pointed out, on the other hand, that it is not a criteria of the realisation of harassment that the degrading atmosphere created by the harasser can be perceived in a wider circle, it is enough that it is perceivable for the harassed person. In the opinion of the Authority, statements violating the human dignity of a patient on the basis of his or her origin and just by looking at him or her are furthermore irreconcilable with the requirements of the essentially confidential relationship between doctors and patients. In another case, the Authority managed to end a dispute concerning the quality of service provided in health care with an arrangement between the parties as follows. A mother of Roma origin submitted complaint against a children s hospital because of the violation of the requirement of equal treatment because the doctor in the hospital and his colleague at reception created a humiliating atmosphere for her and her child because of their Roma origin during their health care treatment. The complainant visited the paediatric division of the children s hospital at 6 a.m. with her 16-year old son because he was experiencing breathing difficulties. Since the district doctor had consulting hours only in 47 Equal Treatment Authority

50 the afternoon that day, they could not have waited that long because of the serious condition of the child. The examining doctor according to the mother talked to them in a humiliating manner. He said, for instance, You are all like this, you cannot wait. According to the complainant, the doctor assumed that they went to the hospital during the night only to avoid waiting long hours for the local doctor. After having left the examination room, the mother became involved in a altercation with a member of the hospital staff at the patient reception counter who had voiced her opinion that the Roma are costly for the national health insurance since they do not work, after which she offered the mop to the mother saying that if she wanted to work she should wash the floor. On the basis of the complaint the Authority conducted an investigation to find out whether the doctor and the employee at the reception created a humiliating and hostile environment which comprise the elements of harassment against the complainant and her son. However, the fact could not be established without witnesses, the doctor moved to another country in the meantime and the employee at the reception counter denied the accusations. Following the hearing, the director of the hospital and the employee working at the patient reception counter apologised to the complainant in writing, who accepted the apology as put down in an arrangement. Equal Treatment Authority 48

51 II. 5. Discrimination in other areas Article 4 of the Equal Treatment Act defines the scope of entities which are obliged to comply with the requirement of equal treatment in the course of establishing any legal relationship, taking measures and conducting procedures. Concerning the organisations specified in clause Article (a)-(e) (Hungarian state, local and minority governments and bodies thereof, organisations exercising powers as authorities and the Hungarian armed forces and law enforcement bodies), the regulation allows ex officio procedures, as well, which means that legislators sets more serious expectations for these organisations. This chapter deals with complaints lodged against actions which are outside of the areas set forth in Article 4 of the Equal Treatment Act and discussed in detail in this report (e.g. employment relationships, service provision, receipt of state support) through presenting some significant and, at the same time, typical cases. In 2010, the Authority judged 49 complaints concerning the above-mentioned scope, of which discrimination was established in only 3 of the cases. The Authority rejected most of the complaints (53%) after investigating them on the merits, and 22% without investigating them on the merits because they fell out of the Authority s competence. In the rest of cases, the Authority discontinued the procedure because the complainant declaration was missing or because the petition was withdrawn. 55% of the complaints analysed in this chapter and judged in 2010 were lodged against local governments or their bodies, 12% against guardianship authorities and 6% against the police. 27% of the complaints were lodged against other entities (political parties, associations, ministries, libraries, the National Election Committee, the National Tax and Customs Administration). II.5.1. Cases concerning the functioning of local governments and bodies thereof Pursuant to Article 9 (1) of Act LXV on Local Governments, the local government is a legal entity, its competencies and jurisdictions are exercised by the body of representatives represented by the mayor, i.e. the mayor is the legal representative of the body of representatives. Pursuant to Article 9 (2) of the Local Government Act, the body of representatives of the local government comprises the mayor, the committees of the body of representatives, the body of the partial local government and the office of the body of representatives. Pursuant to Article 4(b) of the Equal Treatment Act, the mayor as an organ of the local government is obliged by the law, this means that independent complaints can be lodged against the mayor. The Authority s jurisdiction extends to all measures and procedures of mayors within their competence. The mayor is the primary person of the settlement, the elected leader of the local community, thus his/her actions and opinions made in this capacity have particular influence on public opinion. The perceived and actual influence of mayors is reflected in the complaints in which the complainants claim they had been excluded from participating in the public works programme by orders of the mayor, 67 or that the mayor, misusing his power, prevented them from buying a house which was up for sale 68 or from the ragweed being exterminated in their area. 69 In 2010, the Authority concluded in two cases that the mayor of a settlement violated the requirement of equal treatment under his other legal relationship. In case EBH/141/2010, the mayor was condemned because he instructed the employees of the mayor s office to keep records on the entry of the settlement s former mayor to the mayor s office, the reason for his visit and the time of his leaving. According to the justifica- 67 EBH/1365/2010; EBH/97/2010; EBH/479/ EBH/1326/ EBH/1404/ Equal Treatment Authority

52 tion of the subject of the complaint, the purpose of the registration was to facilitate smooth administration for the complainant, as he was in the building of the local government more frequently than average to arrange his affairs. The Authority established that upon the arbitrary instruction of the mayor, which was missing any reasonable explanation, the complainant was hindered not only in taking care of his official duties, but also in exercising his civil right to participate in public affairs. Article 2 (3) of the Local Government Act sets forth among the rights of the local government that the local government may express its opinion and carry out initiatives in issues beyond its competence and jurisdiction concerning the local government. That is, the local governments have the right to formulate an opinion in local public affairs as the exercising of their rights has been specified, i.e. they may decide to share their position with the public concerning a public affair; the issue falling within their competence should be considered a measure taken in line with Article 4 of the Equal Treatment Act. The Authority adopted its first condemning decision in relation with an opinion expressed by a mayor as legal representative of an organ of the local government and the body of representatives in The mayor appealed to the courts against the Authority s decision. The Metropolitan Court of Budapest rejected the claim submitted against the Authority s decision which had established the fact of harassment. 71 The court did agree with plaintiff s argument according to which the subject of the administrative procedure could not be the mayor since he made the statement that was the subject of the condemning decision issued by the Authority against him in front of the body of representatives and as member of this body, i.e. the subject of the procedure could only be the body of representatives, if anything. In the opinion of the court, the plaintiff, taking into consideration his specific legal position, is all at once the mayor, a local government representative and as mayor a one-person local government organ is entitled to represent the primary trustee of local government rights, i.e. the body of representatives, based on the law. His body membership cannot be separated from his office as mayor, and he made the statement in question in his official capacity. It was not relevant, therefore, that it was said during a meeting of the body, since the subject of the trial was the decision made by the local government body. The Court also shared the Authority s opinion that it had no significance for the issue what relationship existed between the plaintiff and the complainants belonging to the Roma minority offended by the statement concerned since the Authority was only investigating whether the plaintiff s statement comprised any element of the fact of harassment as per Article 10 (1) of the Equal Treatment Act. It was also irrelevant when and in which manner the statement concerned became known by the public since the body meeting itself was public anyway. The Court also agreed with the Authority in that the Authority s procedure was aimed at establishing beyond a doubt the existence of any element of the fact as per Article 10 (1) of the Equal Treatment Act, where specific reference to the Roma minority was not necessary. Furthermore, the Court also concluded from the submitted DVD recording that, in the context in which it was said, the plaintiff s statement was clearly capable of creating a negative atmosphere around the women and pregnant women belonging to the Roma minority living in the settlements who were specifically mentioned in the statement and for reinforcing existing prejudices, and for having a hostile, humiliating and degrading effect leading to discrimination in terms of the way that society judges them. In the legal position of the Court, the words open secret and I have made inquiries and it is true referred to the behaviour of the Roma women not only as implications, but suggested that the plaintiff had actual knowledge of the behaviour described in the statement. 70 See 2009 report of the Authority, p K /2010/3 Equal Treatment Authority 50

53 The mayor appealed to the Supreme Court against the decision of the Metropolitan Court of Budapest. The Supreme Court overturned the decisions of the Metropolitan Court of Budapest and the Authority on the grounds that the mayor (also as a member of the body of representatives and a person in his capacity of town representative) could establish a relationship with specific individuals exclusively in acting under his local government and administrative duties, and in this he was obliged to meet the requirement of equal treatment. The mayor as an organ of the body of representatives performing local government tasks has no duty or statutory competence that concerns the complainants, residents of Szendrőlád and Lak, therefore no legally regulated social relationship, i.e. legal relationship existed between these individuals and the mayor. Since the mayor did not make the statement in question within his competence and jurisdiction, his statement did not fall under the competence of the Equal Treatment Act. The Supreme Court interpreted the statement of the plaintiff made at the meeting of the body of representatives as a declaration made as a private individual, therefore neither his responsibility nor that of the body of representatives could be established because the local government represented in the proceedings was not responsible for the statements/declarations of the members of the body of representatives outside of their competence. In a similar case, the Authority found that harassment had been committed in relation with the speech of a mayor delivered at a demonstration and published in the local government s paper. 72 The procedure was initiated upon the request of a rights protection organisation in the framework of its protecting public interest. According to the petition, strong anti-roma public feelings developed in the settlement among the local population following the murder of a local 10-year old girl. The murder triggered great outcry at national level, as well, and the media followed the investigation closely. On the days following the murder, the mayor referred several times to his presumption that the perpetrator was of Roma origin, and that the Roma were mainly responsible for the lack of public security in the settlement. The body of representatives of the local government organised a demonstration under the title Against violence, for life. The mayor delivered the following speech at the demonstration: I m sad to learn that the state secretary for Roma affairs almost expects, demands that it turn out that Hungarians committed these attacks on Roma... I feel more and more that as a Hungarian I m a second-class citizen in my own homeland... The aggressors, thieves and murderers should beware! Violence has no place in this town, there is no place for criminals, and there s been enough Roma violence in the settlement. The settlement and Hungary belong to peaceful citizens who respect the law. We will not allow any more that they steal our property, beat elderly people and humiliate children. For now, there s still more of us." According to the complaint, a strong fear developed in the Roma following the mayor s statements because they increased anti-roma sentiments and contributed to the worsening of public opinion which had been rather peaceful before. In the period following the demonstration, several local Roma were exposed to atrocities, and opinions supporting segregation at school were voiced. According to the complainant, since the events received significant media attention, the mayor s statements did not only affect the settlement, but concerned all Roma in Hungary. The mayor argued that he never said that the perpetrators were of Roma origin, and that he did not participate in the demonstration as mayor but as a private citizen. Consequently, by delivering the speech he only exercised his right to freedom of expression and freedom of assembly. The opinion he expressed was not official and thus it fell under the same category as that of any constituent. He referred to the resolutions of the Constitutional Court No. 30/1992. (V.26) and 18/2004. (V.25), pointing out the outstanding significance of the freedom of expression and in particular that this law protected opinion regardless of its value and true content, even if they were offensive, shocking or caused concern. 72 EBH/187/ Equal Treatment Authority

54 In relation with the speech of the mayor delivered at the demonstration, the Authority concluded that the contents could be suitable in themselves to cause fear among the local Roma and to develop a hostile and offensive environment. As to the hostile environment serving as a basis for the assaults, even the mayor stated that a strong anti-roma atmosphere developed in the settlement within a short time following the murder, and that on one occasion he had to convince young people not to seek revenge with violence against the local Roma. This means that the hostile climate developed already before the statements in question of the mayor, but his speech and publications were capable of reinforcing those voices which were demanding that the Roma be called to account (even collectively, considering the emotional state of the population). This was not changed by the fact that the declared purpose of the mayor before, during and after the demonstration was to protest against violence, without any racist overtones, nor did it make any difference that no actual crime had been committed against the Roma after the speech. Just as no other publicly delivered speech, the mayor s speech at the demonstration cannot be interpreted and evaluated without taking into consideration its context and environment. In addition to the mayor s speech at the demonstration, the Authority also established that the mayor had carried out harassment against the Roma community in an article published in the local paper and also in a national daily, in which the mayor mentioned without any basis and one-sidedly the representatives of the Roma as perpetrators of extremely brutal crimes. The article was suitable for creating a degrading, hostile and even aggressive atmosphere against individuals of Roma origin. The mayor s open letter in the local paper in which the mayor wrote about the constant violations on behalf of part of the Roma population was suitable to have a similar effect. According to the position of the Authority, by raising the mayor s racist statements to national level, the articles went far beyond the problem of the local Roma population and constituted harassment against Hungary s Roma community. The Authority applied the rules of justification as per Article 7 (2) (a) of the Equal Treatment Act with regard to the fact that two fundamental rights were in conflict, namely that of the mayor to express his opinion and that of individuals belonging to the Roma minority to human dignity. Pursuant to Article 7 (2) (a) of the Equal Treatment Act, measures or behaviour do not violate the requirement of equal treatment if they restrict the fundamental right of the discriminated party in order to enforce another fundamental right in an unavoidable situation, provided that this restriction is suitable for and proportionate to the achievement of that purpose. Based on the verdicts of the Constitutional Court, the Authority concluded that the personality rights derived from the right to human dignity (in particular the requirement of equal treatment resulting from this) are so significant that in certain cases they must by all means have priority over the right of to freedom of expression. 73 Statements leading to the development of a hostile, aggressive and degrading environment against the Roma population suggesting the collective guilt of the Roma may have a negative effect on the life of the local and national Roma population in the long-term and impair their social standing and increase prejudices against them. Such restrictions of the right to human dignity, the Authority concluded, did not meet the requirement of necessity and proportionality as applied by the Constitutional Court. The mayor lodged an appeal against the Authority s decision with the Metropolitan Court of Budapest. He essentially based his claim on the arguments raised in the Authority s proceedings and argued mainly that he wrote the articles and delivered the speech as a private individual exercising his right to freedom of expression. In its verdict No. 8.K /2010.3, the Metropolitan Court of Budapest overturned the Authority s decision and obliged the Authority to conduct new proceedings. In contrast to its verdict passed earlier in a similar case, the Court based its decision on Article 4 (b) of 73 Constitutional Court verdicts on the restriction of the freedom of expression. Equal Treatment Authority 52

55 the Equal Treatment Act, stating that the Authority did not have jurisdiction to investigate the compliance of the mayor s statements and articles with the requirement of equal treatment. Pursuant to the explanation of the Metropolitan Court of Budapest, falling within the scope of the Equal Treatment Act presupposes some statutory or self-government procedure or measure, i.e. a specific action, act or activity, the criteria of which is that it gives reason for administrative proceedings. According to the Authority s position the Court interpreted the personal scope of the Equal Treatment Act in a limited sense which was contrary to the spirit of the law, therefore it submitted an application for review to the Supreme Court arguing the lack of justification of the administrative court s decision. In the opinion of the Authority, the acts falling within the scope of actions and procedures set forth in Article 4 of the Equal Treatment Act cannot be limited to a procedure or decision based on a procedural regulation since this would lead to the hollowing out of legal protection against other obliged entities (e.g. libraries) also falling within the scope of Article 4. In the case concerned, there is no positive procedural rule on which their actions and decisions can be based, therefore, according to the Court s decision, compliance with the requirement of equal treatment could only be examined in relation with their legal relationships. In its application for review, the Authority pointed out that if accepting the Court s interpretation, public interest claims could not even be put against the entities bound under Article 4 (e)-(l) of the Equal Treatment Act. Public interest claims can only be enforced under Article 20 (1) of the Equal Treatment Act if the violation or the direct threat thereof concerns a relatively large and not exactly defined group of people. Should the violation concern a person that cannot be specified, it is formally excluded that the offender has a legal relationship with them, since a legal relationship can only exist between specific entities or organisations. Consequently, public interest claims can only be enforced in relation with a procedure or measure. The proceedings of the Supreme Court had not yet finished at the publication of this report. Complaints against local governments represent a considerable part of petitions criticising official administration. Most typically, complaints concerning the denial of a permit or the imposition of fines were rejected for lack of a protected characteristic. 74 Complaints were received because of decrees adopted by local governments in cases falling within their scope of regulation and other normative decisions, but none of them proved to be grounded. 75 This includes a petition lodged by two interest protection organisations against the planned bicycle-friendly town development concept of the Municipality of Budapest claiming that the urban development concept, by eliminating parking lots and traffic lanes for constructing bicycle routes instead, disadvantages car drivers, who are in the majority. The Authority rejected the complaint without investigating its merits because the complainants did not deem probable that they possess a protected characteristic, furthermore they did not refer to a personal, specific violation, which is a fundamental precondition for investigating a complaint on its merits. 76 II.5.2. Guardianship cases Pursuant to Article 4 (c) of the Equal Treatment Act, organisations exercising powers as authorities are obliged to comply with the requirement of equal treatment. Similarly to previous years, several claims were received in 2010 in which one of the parents complained that the guardianship authority in charge of child contact violated the requirement of equal treatment in relation with his/her fatherhood, motherhood or sex. 77 In each case, the complainants turned to the Authority after the guardianship authority acting 74 Cases 423/2010; 1071/2010; 1183/2010; 178/2010, 72/2010; 535/ Cases 298/2010, 655/2010, 738/2010; 732/ Case 655/ Cases 250/2010; 735/2010; 993/2010; 1362/2010; 1039/ Equal Treatment Authority

56 in the second instance reviewed the decision of the guardianship authority acting in the primary instance, and also in some cases when the court with jurisdiction to review public administration decisions made a decision. The Authority rejected such claims for the lack of jurisdiction due to the fact that it was not competent to change the decision of another authority by reviewing it on the basis of either material or procedural points of view. The procedure of the guardianship authority concerning child contact is a special procedure in which the interests of the parents are in conflict due to the peculiarities of the procedure. The guardianship authority s decision can only be in favour of one of the parents (either the father or the mother). Therefore, in every case where a decision is made that is unfavourable to the mother or to the father, the protected characteristic is given. Pursuant to the relevant legal regulations, measures regarding child contact fall within the jurisdiction of the guardianship authority acting in the first instance. The guardianship authority acting in the second instance is competent to exercise professional guidance, supervision and control over the first instance guardianship authority. The possibility for court revision of administrative decisions found prejudicial in that they infringe on the law exists under Article 109 (1) and (2) of Act CXL of 2004 on the General Rules Governing Public Administrative Procedures and Services. In its verdict No. 8. K /2010/3, the Metropolitan Court of Budapest upheld one of the Authority s decisions in which the Authority rejected the complaint for lack of jurisdiction. The court agreed with the Authority in that pursuant to Article 19 (4) of the Act on Administrative Procedures, a case falling within its jurisdiction cannot be taken away from the Authority, furthermore, that pursuant to Article 15 (6) of the Act on Administrative Procedures the Authority cannot review the statutory decisions and actions of courts. According to the position of the Metropolitan Court of Budapest, since the complainant found prejudicial the lack of equal rights in relation with the procedure of the competent guardianship office, i.e. they requested that the violation of the requirement of equal treatment be established, they may request in the course of the review of the administrative decision by the court of justice that the court also decides concerning the issue of compliance with the requirement of equal treatment. This possibility exists as long as the court has not brought judgment in the case, i.e. up until the conclusion of the trial. The court detailed in its explanation that in the case of child contact, parents often expect the authorities to settle the conflict between them, however, if a compromise cannot be reached, to make a decision that would be acceptable for both parents is almost impossible due to the nature of the procedure. In spite of this, making a decision that is unfavourable to one of the parties is not in itself a reason for presuming discrimination based on the protected characteristic of the party concerned, i.e. it does not represent an infringement of equal treatment. Pursuant to the court it is unfortunate that child contact is interpreted differently by the father and the mother, creating through this the basis for plenty of claims for enforcement, nevertheless, this does not mean that the Equal Treatment Authority has any competence for intervention in such cases. The fact that the guardianship authority makes a decision found prejudicial by one of the parties does not mean that it committed discrimination against him/her. Equal Treatment Authority 54

57 II.5.3. Complaints against other obligated parties Only three complaints criticising the procedure of the police were judged in 2010, complaining of unacceptable tone and humiliating treatment by police. Most of the complaints lodged against the police are closed by a simple information letter. Most of them arrive via and there is no need for the submission of additional information since they clearly do not concern discriminatory behaviour. It is typical in general, not only concerning complaints against the police, that complaints are lodged with the Authority against organisations exercising powers as authorities or against the decisions of other fiscal organisations found prejudicial seeking final remedy. 78 It is typical that these complaints apply explicitly or only indirectly to the Authority for examining mostly final administrative or court decisions. In 2010, only two proceedings concerning complaints against political parties were completed, in both cases in relation with behaviour suitable for harassing individuals belonging to the Roma minority. 79 In one case, the withdrawal of the complaint resulted in the termination of the procedure because the complainant was frightened that his family would suffer prejudice because of his complaint, while in the other case the self-government of the Roma minority, representing public interests, was not able to name witnesses having suffered any prejudice by the electoral leaflet found prejudicial. In the latter case, the contents of the complaint did not verify that a hostile or humiliating environment developed as part of the harassment against the local or the national Roma population upon reference to Roma crime in the leaflet, or that there was a threat of this happening. Statements attributing ethnicity to crime may of course offend and humiliate those belonging to the ethnic minority, however, for establishing harassment the complainant has to be able to define where, when and under what circumstances the degrading atmosphere developed or could have developed. 80 A complaint was received against the National Election Office where the complainants provided their protected characteristic during the redress activity exercised in the electoral process 81. The Authority rejected the complaint because the characteristic referred to by the petitioners was not considered a protected characteristic as per Article 8 (t) of the Equal Treatment Act. The complainants applied for a court review of the Authority s decision, the court proceeding was not yet closed as of the publication of this report. In 2010, the Authority brought judgment in four complaints against ministries, in one of which it concluded that the subject of the procedure violated the requirement of equal treatment. 82 The proceedings were launched on the basis of a complaint lodged by a public interest entity. According to the complaint, the ministry did not consider the athletes who were successful at the 2009 Deaflympics members of equal rank in Hungarian society when instead of rewarding them, it recognized them with presents like inflatable beach balls, key chains, plastic hair combs, ballpoint pens, notebooks and beer bottle openers, thereby harming their human dignity. The national team participating in the Deaflympics in September 2009 did not receive a bonus for the medals and scores achieved, the ministry did not take any measure for establishing and paying bonuses. Pursuant to the complaint, although the bonus can just be given and its amount is not specified by law, but the competent minister must not apply discrimination in deciding on it. In evaluating the excuse of the organ which was the subject of the procedure, the Authority took as a basis the provisions of Act I of 2004 on Sports (Sports Act), according to which each Hungarian citizen who as a member of the Hungarian national team either as an 78 Cases No. 730/2010; 1767/2010; 604/2010; 993/2010; 1360/ Cases No. 797/2010; 140/ Case No. 797/ Case No. 651/ Cases No. 1178/2010, 1136/2010; 728/2010; 9/ Equal Treatment Authority

58 individual or as member of a team, achieved first, second or third place in the summer or winter Olympic games organised by the NOB, or at the chess Olympics organized by FIDE, or since 1984 at the Paralympics or the Deaflympics, is entitled to an Olympic bonus as of 1 of January of the year following the completion of his/her thirty fifth year of age till the end of his/her life. Based on the above, the position of the subject of the procedure claiming that due to their different qualification and competition systems, athletes earning medals and points at the Deaflympics cannot be considered subjects of law equal to Olympic and Paralympic athletes when establishing their bonuses, i.e. subjects of law equally entitled to bonuses, is irreconcilable with the spirit of the Sports Act s provision referred to above. The quoted provision of the Sports Act recognises the equal rank of the competitions listed therein from the aspect of entitlement to Olympic games, therefore, the bonus based on consideration could only be denied from the successful athletes by the arbitrary devaluation of the Deaflympics. According to the Authority, from the point of view of entitlement to bonuses, the athletes participating in the Deaflympics were in a situation not only comparable with healthy athletes, but also with the disabled athletes successfully participating in the competitions indicated in the Sports Act, i.e. they were to be treated as individuals with equal dignity. Being treated as equals is not the same as equal treatment, but it requires from the state organ deciding on support to make decisions based on the taking into consideration of specific aspects, and the ministry in question failed to do this. Exclusion from rewards of a group of athletes with a specific disability who have successfully participated in competitions which provide for bonuses on the same level as Olympic benefits explicitly on the basis of their protected characteristic is discriminatory, and budgetary or sports-related arguments cannot be an excuse for this. Reference to the budget was not acceptable since during a relatively short period of time only the bonuses of the deaf athletes were withheld (partly) because of a lack of money. The successful participants of all other competitions giving eligibility to benefits pursuant to the Sports Act, i.e. recognised by the law as being of equal value, received their benefits. It is undisputed that restrictions caused by the economic crisis affected the sports budget, too, but the state is obliged to comply with the requirement of equal treatment in the allocation of the so-called ex gratia benefits falling within its scope of consideration. It is not acceptable that due to budgetary difficulties athletes belonging to a group of disabled persons do not receives bonuses while members of groups comparable to them all get the same amounts. The sports-relevant arguments (lack of qualification, Hungarian competition system, differences in selection) conflict with the quoted provisions of the Sports Act, therefore, according to the Authority s position they cannot be considered lawful arguments excusing specific decisions of the minister. In its section relating to the Olympic games, the Sports Act recognizes the Olympic Games, the Paralympics and the Deaflympics as equivalent from a sports-related aspect, which the ministry in charge for sports cannot overrule on a case-by-case basis. The Authority examined the declarations of the subject of the procedure given as evidence for justification and came to the conclusion that, according to objective considerations, the discrimination had no reasonable explanation directly related to the legal relationship concerned. Based on the above, the Authority established that the ministry infringed the requirement of equal treatment as per Article 4 (a) and Article 8 (g) of the Equal Treatment Act against the Hungarian athletes having achieved medals and scores at the 21 st Summer Deaflympics. The Authority rejected the complaint of a public interest rights protection organisation against the head of the local election office because it could be established in the proceedings that the notary acting as head of the local electoral office complied with the requirement of equal treatment. 83 According to the complainant, the subject of the procedure violated the requirement of equal treatment when in the course of designating the constituencies he Equal Treatment Authority 56

59 neglected the requirement of equal accessibility to the selected public buildings. The Authority s investigation focused on whether the head of the local election office met his obligation concerning the inspection of the public buildings and whether he took into account in designating them measure OVI 8/2009. (XI.12.) on the territorial designation of electoral districts for the 2010 parliamentary and the order of the forwarding of related data, i.e. whether he designated the polling stations in buildings which are accessible for disabled persons. Furthermore, if he did not take into account this requirement, whether he violated the requirement of equal treatment and whether the threat existed that the requirement of equal treatment was jeopardized. In this context the head of the local election office had to give evidence that the polling stations had been inspected within the legally set deadline and in accordance with the relevant provisions and the booklets and measures of the National Election Office, furthermore that he did his utmost to designate the polling stations in buildings that are easy to access. Relying on the report of the Parliamentary Commissioner of Civil Rights on case OBH 2405/2009, in which the ombudsman reported on the prospects of the implementation of a voting system which ensures the participation of individuals living with various disabilities in public life as actively as any other citizen with full voting power, the Authority accepted the justification of the notary subject to the procedure and found the arguments presented as justification to be reasonable. The inspection took place as verified by the submitted documents and there was no other public building that the notary could have designated for this purpose. Pursuant to the Authority s position, the notary cannot be expected to take into account all buildings accessible and otherwise suitable for the elections in private ownership in designating polling districts in addition to the building used for public service provision, and no such database or records were at his disposal. The Authority had to take into account, too, that the owners could not be obliged to make available their properties suitable for the purposes of voting for the elections, there was no constitutional basis for restricting their ownership rights including their right to property. Furthermore, the Authority could not neglect the circumstance that the notaries cannot be obliged to conclude private contracts even for the sake of providing equal accessibility to voting facilities for all citizens. 83 Case No. 883/ Equal Treatment Authority

60 III. Arrangements The institution of arrangements has a tradition in various branches of law. For instance, Article 4 (1) of Act IV of 1959 on the Civil Code stipulates that In the course of exercising civil rights and fulfilling obligations, all parties shall act in the manner required by good faith and fairness, and they shall be obliged to cooperate with one another. The legislators concept of providing alternatives for the settlement of disputes appears in the possibility of turning to the court of arbitration provided for in the Civil Code, or in the institution of the so-called reconciliation conference which represents the first stage of divorce proceedings; and not least in the institution of arrangements know in administrative procedures. The friendly settlement of disputes at international level is regulated in bilateral international arrangements, as well, e.g. between Hungary and Switzerland or Hungary and Sweden. 84 The process of reaching an arrangement can be interpreted as a kind of mutual understanding. The role of our Authority is worth mentioning in respect to this legal institution, too, since parties with conflicting interests face each other in the administrative procedures conducted by us, the justified interests of whom are difficult to reconcile with the institution of arrangements. This kind of change of roles can be interpreted in the administrative procedure in two ways: on the one hand, the conventional role of the Authority as a public power is replaced with the role of mediator, and on the other hand, the parties with conflicting interests reinterpret each other s thoughts and feelings in the procedure. This means that the arrangement process entails a shift in relation to the absolute belief of the individual in his/her own truth. Of course, the ego perspective of the subjects of the procedure enjoy priority in lodging an administrative procedure. The insistence of the subject to the event concerned and to his/her role in it is a significant and even inevitable element in launching a procedure concerning an act that the subject finds to have violated his/her dignity. This subjective feeling, this me subject is transferred to he/she, i.e. to the subject of the other party upon reaching a mutual arrangement, when the parties start to accept the position of the other. Of course, arrangements are not an unacceptable process that doesn t include the friendly settlement of the procedure concerned, but just the contrary: it develops a joint compromise for the satisfactory conclusion of the event/series of events both in legal and in emotional terms. The Authority as an administrative body investigating human right infringements puts increased emphasis on the rights and lawful interests of clients in a manner that results in the mutually beneficial reconciliation of conflicting aspects in line with the legislator s intention set forth in Act CXL of 2004 on the General Rules of Administrative Procedures and Services (Administrative Procedures Act). Namely, with an arrangement, as our experience shows, both parties win and they also interpret this to be the case. The Authority closed 36 procedures with arrangements in 2010; this number was 9 in 2005, 13 in 2006, 3 in 2007, 23 in 2008, and 18 in This means that twice as many arrangements were concluded in the past year than in the previous year, representing 9.54% of all decisions on the merits including the verdicts closing the procedures. Article 64 (1) and (2) of the Administrative Procedures Act makes the attempt to conclude arrangement an obligation of our Authority and sets forth in the second sentence of the provision that an attempt to reach an arrangement can be initiated if the nature of the case 84 More about this: Conflict managemend by mediation (2001/2-Jog) In: Firm management Equal Treatment Authority 58

61 allows. The examination of the nature of the case, and in this context the goal of the complainant to be achieved by the administrative procedure, are especially important for the Equal Treatment Authority since complainants lodge a procedure claiming human prejudice mostly with a specific goal. An interesting experience is that in most cases this goal is of an ethical nature, i.e. a kind of compensation that entirely is entirely in line with the intention of the legislator having set up the Authority. Apologising is considered to be one of the basic elements of an approved arrangement. The arrangement has elements that are to be included in each case. These recurrent elements had been developed partly by the law on public administration procedures and partly by the practice following the internal conviction of the parties involved. The former is a compulsory clause of the arrangement bearing of costs and setting deadlines, while the recognition of mutual respect, declaration of readiness to cooperate, not questioning good faith as well as the compulsory recognition of equal treatment until then and/or in the future can be mentioned among the latter elements of arrangements. A typical example of arrangements is the arrangement based on an apology for purely ethical reasons. 85 The injured party turned to the Authority because of the termination of his employment since, in his opinion, this was in relation with his health status as so-called protected characteristic. In the arrangement concluded before the Authority, the employer apologised because the complainant might feel that the employer s measure took place in a discriminative manner which harmed human dignity, and such behaviour was not the employer s intention. The complainant accepted the apology and considered the case closed with satisfaction. The parties recognized the arrangement to be binding for them and did not claim monetary compensation from each other. Some complaints reflect the behaviour of the subject causing injury. It is not guaranteed, but does happen that this reflection and the internal self-examination carried out as a result of this, the reinterpretation of the action, the process of getting to know the convictions and reasons of the injured party result in identification with the situation of the other person. Accordingly, there are entities under complaint that do not recognise in the framework of an arrangement that their behaviour was discriminatory, and there are entities that do recognize the discriminative nature of the action being complained against. In one arrangement, the employer expressed his regret and apologised without recognising his infringement of the requirement of equal treatment because his employee could conclude from his action (termination of the employment) that she was treated in a discriminatory manner because of her motherhood. In the arrangement concluded in case No. EBH/960/2010, in which the complainant criticised the events taking place at a teachers grading session, the education institution which was the subject of the procedure maintained its conviction that they did not violate the requirement of equal treatment. But, of course, if the statements said during the meeting offended the complainant, they apologised for this. 86 It is important to emphasise that the complainants accepted the declarations and expressed that they considered the case closed. In some cases, the acceptance of the interpretation of the adverse party occurs, as well. In an arrangement lodged by a public interest rights protection organisation because of a discriminative job advertisement, the company in question recognised that the job advertisement violated the requirement of equal treatment, which was not their intention Case No. 426/ Case No. 68/ Case No. 695/ Equal Treatment Authority

62 In another case, the education institution which was being complained against recognised in the framework of an arrangement that it did not find the proper communication channel with the parents (the complainants in the proceedings) during the school year or in the following period of time in order to inform them on the development of their infant. The school also admitted that the parents continuously fulfilled their obligation to cooperate. 88 Another common element of arrangements which manifests itself in various forms is the inclusion of stipulations aimed at prevention. The other most important outcome, in addition to the satisfactory conclusion of the procedure by the clients, is the facilitation of practices which reduce violations of the requirement of equal treatment in the future. As the cases received by the Authority are diverse, obligations assumed for the future can also vary. Their nature may be general, or include specific declarations or promises to a person or persons. So-called general obligations are mostly related to the world of labour when the entity publishing a job advertisement or taking an action as employer recognises as mandatory for itself the requirement of equal treatment for the future and to act in accordance with this principle. In the arrangements concluded by the Authority in the proceedings in the framework of public interest protection concerning discriminative job advertisements, the business entities subject to complaint vowed that they would comply with the requirement of equal treatment both in the texts of the job ads to be published in the future, as well as in selection processes. 89 In one case, the entity publishing job ads promised to pay more attention in the future and to give full information about the application criteria and the selection process to individuals intending to apply and find a job. 90 In order to provide the most complete information possible, the firm will issue a circular to its the regional staff members and unit managers. The arrangement concluding a case in the service sector contains similar assumption of obligations of a general nature, in which the cultural institution reviewed the use of the name pensioners ticket. 91 Without doubt, in the issue concerned the parties deliver declarations concerning the subject and, in many cases, their future cooperation. Such specific commitments concern primarily giving advice on a future job opportunity stipulating that this does not mean automatic employment 92, i.e. it only guarantees participation in the selection process, and in the course of that guarantees the applicants a procedure in line with the requirement of equal treatment. 93 The emphasis is also on future cooperation in the cases when e.g. a long-term arrangement is concluded in the proceedings between an education institute and the parents. An example of the above is the procedure below and the arrangement reached at its conclusion. 88 Case No. 1245/ Cases No. EBH/107/2010, EBH/695/2010; EBH/761/ Case No. 194/ In case No. EBH/252/2010, the complainant turning to the Authority found prejudicial that a museum discriminates students over 26 years of age and pensioners under 62 years of age when selling discounted tickets to students and pensioners, since these individuals cannot receive a 50% discount since it was only applicable to students under 26 and pensioners between 62 and 70 years of age. 92 The Authority emphasises here the decision of the Constitutional Court which states that the fundamental right to freely choose one s work and occupation does not provide a guaranteed civil right to pursue a specific occupation or perform a specific activity (Const. Court resolution No. 327/b/1992). 93 Cases No. 7/2010, 109/2010, 194/2010, and 266/2010, in which the employer assumed the obligation to inform applicants of the next opportunity of hiring procedures for jobs if the complainants are eligible. Equal Treatment Authority 60

63 The children of the parents turning to us were under treatment in the medical institute of a hospital in the countryside. The parents were informed in the second semester of the previous school year that school education in its current form will not be provided from the next school year. They were informed that educational tasks will be performed by a so-called travelling teachers system in the afternoon hours, and only from the 14th and/or the 22nd day, respectively, spent in the medical institute by the children. Within the right to culture as a right provided by the Constitution, the right to education is the most important. Exercising the right to education, nevertheless, imposes obligations and gives rights to parents, the state, local governments and society. In the case in question, the parents saw the equal access of their children to education jeopardized by the transformation of the teaching scheme. Since the local government transferred its obligation to the church in the, in the arrangement reached between the parties, the operator of the educational institute, the educational institute and the parents all assumed obligations. Concerning the aspect of the complaint dealing with the quality and the time of education to be provided to the children, the operator assumed the obligation of providing scheduled teaching in the morning hours and of working out the time schedules of teachers both in the seat of the institute and at its own site accordingly. The maintainer undertook in the arrangement, too, that the children can participate in teaching independent of the number of days of hospitalisation if they request this in an application form made for this purpose. The educational institute assumed in the arrangement to ensure the possibility that among the news on its website it will continuously report on events concerning the children learning in the medical institute and related to the current school year. The parents assumed to request the education of their children in the application form available for this purpose. For the future, the parties mutually declared that they will communicate on the issues that might arise, in line with the internal regulation of the parent institution. 94 The case where the service providing unit agreed to display an easily understandable extract of the legal provisions concerning seeing eye dogs in its shop is a good example of a long-term arrangement. 95 In the arrangements approved by us, the regulatory criteria of the law on public administration procedures are brought together in a unique manner, meaning that the arrangements do not violate the law, public interest or the rights and justified interests of the other party, and includes deadlines for fulfilment and procedure costs as well as result in a manner which is beneficial to both parties in terms of human rights and a satisfactory conclusion of the case. All this can be achieved by a kind of mediation on our side, since procedures are lodged with our Authority not exclusively in cases arising on the basis of objective impressions, but also subjective ones. In the arrangements approved in 2010, the increased number of dialogues between the parties and the arrangements concluded on that basis allow us to draw the conclusion that the mediation activity of our Authority is the right approach for the satisfactory settlement of human rights violations. 94 Case No. 832/ Case No. 1107/ Equal Treatment Authority

64 Equal Treatment Authority 62

65 IV. Informational activities The Authority received 549 petitions in 2010 falling under the statistical category other complaint/request. Typically, those petitions fall within this category that can be dealt with without investigation on the merits and the Authority provides information upon the request of the client. Other complaints/requests come almost exclusively from private individuals and concern mostly issues which fall outside of the competence of the Authority. The petitioners do not complain of situations regulated by the statutory provisions concerning the requirement of equal treatment but violations or circumstances falling within other areas of legislation. Complainants request in vast majority the review or amendment of legal regulations to resolve the situation they consider to be prejudicial, or request general information or opinions concerning non discrimination-related issues. In 2010, seeking help in social security issues, or rather for the lack of security were dominant. The lack of social benefits, withdrawal of aid, crises caused by a bad financial situation were the subjects of petitions. Although making the Authority more widely known is of key importance in the formation of social attitudes, it is still considered by a high proportion of petitioners an organ of general complaint management and rights protection. In such cases, besides giving information to the complainant, we refer them to the competent forum, organ or authority for further administration. Due to unfavourable moral circumstances, complainants consider any regretful event or situation in their lives a protected characteristic and are inclined to interpret the term discrimination in a very wide sense. In such cases, a large degree of consideration and empathy is required in writing a reply, since the complainant might have turned to the Authority as last resort and with a huge amount of faith and trust. In most cases, providing information to those turning to us is not restricted to rejection, but we either forward the complaint to the right place, or we make a suggestion for a lawyer, in most cases to one who is specialised in labour issues, to a labour and consumer protection authority, legal aid service, county government office or to an ombudsman s office. 63 Equal Treatment Authority

66 In classifying other complaints/requests, the Authority has to act with extreme caution with regard to the possibility that, concerning cases concluded by an information letter without investigation on the merits, the complainant can seek legal remedy concerning the rejection or the contents of the reply. V. Issues concluded with judicial review In 2010, in 66% of the cases investigated by the Supreme Court, the Equal Treatment Authority received a favourable judgment, i.e. the courts rejected the petition. In 25% of the cases the courts overturned the decisions of the Authority (or of the Metropolitan Court of Budapest), while in 9% the Authority was obliged to conduct new proceedings. Concerning the cases submitted to the Supreme Court, the reason of overturning was mostly the lack of competence. 96 Direct discrimination due to financial situation 97 The Metropolitan Court of Budapest rejected the petition of a county-level local government for the review of an administrative decision of the Authority brought in 2009 that the local government violated the requirement of equal treatment when its health, social and equal opportunity committee applied direct discrimination by approving the bylaws of the Educational Hospital of P. County and applying tariffs in the Nursing Department. The Authority highlighted in its decision that, pursuant to Article 23 (h) of Act LXXXIII of 1997 on Compulsory Health Insurance Benefits (Health Insurance Act), the insured is entitled along with partial compensation, if his/her status so justifies, to admission and nursing by the service provider financed for this task, including the necessary medicines and catering. Pursuant to clause (f) of the same regulation, the insured is entitled along with partial compensation, upon his/her own initiative, to receive health service with contents deviating from Article 19 (1), entailing surplus expenses. Partial compensation is specified in Article 2 (1) and in its Appendix 1, clause 5 of which states that the partial compensation for staying and being cared for in the nursing department based on referral by a doctor amounts to HUF 400 per day. The hospital maintained by the county government did not provide services to the patient referred by the doctor for the partial compensation of HUF 400/day since, in its opinion, each in-patient got services of higher standards than this basic service. We considered this practice a violation of the law since, pursuant to Article 23 (f) of the Health Insurance Act, the insured along with partial compensation was entitled to request services with different components entailing surplus expenses upon his/her own initiative, but pursuant to Article (4) (b) of the Act, only if the insured would have been entitled to receive provision from the health service provider even without surplus services. This means that by approving these specific rates of the hospital, the subject of the procedure committed direct discrimination. Although the measure was neutral since using the services provided by the nursing department was available to everyone with the same conditions, patients in a worse financial situation were discriminated, i.e. de facto excluded from being admitted to the nursing department. The court agreed with the above-mentioned argument of the Authority, accepting that it was not an obstacle to the administrative procedure that there was no specific, known person affected. 96 A regional association representing individuals with impaired vision enforced demands of public interest in front of the Authority, and had earlier lodged over 20 procedures against medicine distribution companies. The Metropolitan Court upheld the decisions of the Authority establishing discrimination, nevertheless, the Supreme Court established the lack of jurisdiction of the Authority with the argument that there was no direct legal relationship between the firms subject to the procedure and the protected group as consumers. 97 Case No. 571/2009 Equal Treatment Authority 64

67 Denial of access to service because of age 98 A case was concluded by the Supreme Court in which the complainant applied to a bank for a credit card but was rejected with reference to his/her age. The bank argued in its petition for extraordinary remedy that, on the one hand, the complainant did not submit a proper credit application and, on the other hand, if he/she did so, he/she should have made probable that the application was rejected in line with Article 8 (o) of the Health Insurance Act. In its verdict, the Supreme Court stated that Article 19 (1) of the Health Insurance Act imposed a presumption obligation on the complainant that could not be identified with the obligation of evidencing from a procedural point of view. Making an allegation probable, namely, represents a lower grade of support than giving evidence, it basically means the provision of data required to launch a procedure. Pursuant to Article 19 (2) of the Health Insurance Act, in case of presumption required by paragraph (1), the other party has to give evidence that he/she observed or was not obliged to observe the requirement of equal treatment. This means that our Authority should only investigate how the complainant verified the probability of the existence of his/her protected characteristic and the occurrence of the discrimination. The Supreme Court also did not accept the argument of the bank that the complainant did not submit the application properly. In its opinion, namely, it was irrelevant from the aspect of discrimination how the application was submitted and whether it complied with the bank s regulations. It was possible to conclude from the correspondence between the bank and the complainant that the complainant applied for a credit card with the bank and the branch of the bank rejected it following a risk analysis. Harassment because of other situation Discrimination in the field of employment 99 The Supreme Court concluded another case in which the complainant submitted a complaint to the Authority against her employer claiming that the employer violated the requirement of equal treatment and created a hostile atmosphere against her, then terminated her employment. The complainant, having worked with the institution as kindergarten teacher for 13 years, applied for the position of kindergarten leader in a tender, and after this experienced a negative atmosphere against her by the employer. The application of the complainant failed and the head of the kindergarten turned several staff members against her. We concluded that the employer applied harassment against the complainant because of her other situation. The Supreme Court - similarly to the Metropolitan Court of Budapest considered the participation of the complainant in the competition for the position of kindergarten leader, her application and the circumstances experienced in the course of judgment to be an other situation. 98 Case No. 421/ Case No. 1260/ Equal Treatment Authority

68 Claims of preference in tenders based on a characteristic 100 Annulling the Authority s decision and the verdict of the Metropolitan Court of Budapest, the Supreme Court concluded that the local government did not violate the requirement of equal treatment by referring to local inhabitants as enjoying priority in its invitation for tenders. In the opinion of the Supreme Court, a tender invitation is not considered a provision pursuant to Article 8 (t) and the invitation itself did not discriminate anyone. The job advertisement of the plaintiff did not refer to local residency as a prerequisite but only as an asset, and discrimination was not applied against anyone because he or she was not a local inhabitant. Giving priority was not an employment criteria, those not living in the settlement were not excluded from applying, especially in the light of the fact that inhabitants of other settlements had been employed from the twenty one applicants, among which were also local residents. Discrimination because of housing, health status and disability 101 The Metropolitan Court of Budapest rejected the petition of the local government subject to the procedure for review of the Authority s decision, in which the complainant found prejudicial that the social and housing committee of the local government repeatedly rejected his application for a larger apartment and more comfort instead of the current 35m 2 apartment with fewer conveniences with reference to his disabled child who had poor health. The Court did not consider it beneficial to the defendant s position that it would have provided housing for the complainant and his family in the countryside as replacement to their current accommodation, because the complainant worked in Budapest and the settlement offered was so far away from there that school attendance for the disabled children would be difficult. In the Court s opinion, this would mean a worsening of the current situation of the complainant. The court also criticised that the local government did not indicate the size and the comfort grade of the replacement apartment, thus it did not even intend to bring the complainant into a position of possessing information on the parameters of the apartment designated for him and his family. The also court did not accept the argument of the defendant that not every family in a similar situation as the complainant got an apartment from the local government after the expiration of their entitlement to a Provisional Home for Subtenants (where the complainant lived with his family) since it had been concluded in the investigation of proof conducted by the Authority that with one exception all families were given apartments of a higher grade of comfort and larger size later with regard to the number of persons moving into the apartment. In its verdict, the Court pointed out that if the local government voluntarily assumes to provide accommodation on its territory to families in need within the framework of exercising its ownership rights, it is obliged to comply with the principle of equal treatment and must not implement discrimination in the allocation of apartments based on any characteristic listed in the Equal Treatment Act either actively or by omission. 100 Case No. 819/ Case No. 628/2009 Equal Treatment Authority 66

69 VI. International relations Equinet The backbone of the Authority s international relations is its activity within Equinet. Equinet, that is the European Network of Equality Bodies, is an international non-profit association, its members are equal treatment bodies of European states (33 organisations from 28 states are involved in the work of Equinet). The members are organisations that fight against discrimination in their countries 102, however their scope and jurisdiction as well as the protected characteristics as a basis for discrimination which they deal with and the sanctions, their organisational structure and degree of independence vary across Europe. The founding of the Equinet is bound to a 2-year EU project 103 and its functions have until now been maintained by EU funds under the PROGRESS 104 programme, although, by paying annual membership fees, the members also contribute to the operation costs. The task of Equinet is to provide a framework for the flow of information between the members and to give an opportunity to share experiences, thereby facilitating the work of the member organisations. The sharing of experiences among the equal treatment bodies of the member states gives the members an opportunity to identify common problems, trends, share good practices and experiences with each other, and to view their everyday work in a broader context. Equinet organises training courses for the employees and experts of the members on a regular basis. Another important element of its activity is the running of working groups as workshops for research, information exchange and cooperation in specific areas for the employees of the member organisations. Beyond this, Equinet considers it its task to take a position in issues concerning the fight against discrimination at European level, and to conduct research in issues of equal treatment and to publish the research outcomes. The supreme decision making organ of the organisation is the Annual General Meeting (AGM) where representatives of the members discuss the most important issues and make decisions about them. Decisions concerning continuous functioning are made by the Council of Directors, led by the chairman of Equinet. As regards daily operations, the organisation of Equinet is comprised, on the one hand, by working groups (the members of which are employees of the member organisations, thus the contribution of the members to the functioning of the organisation is not only of a financial nature but also entails the offering up of working hours, as well), and on the other hand by the Secretariat in Brussels. Equinet maintains contact with all EU organs that are involved in the fight against discrimination, thus with the Fundamental Rights Agency (FRA, see details below) and the European Commission. The Authority was involved in the work of Equinet as a full member in 2010, as well. The annual meeting 105 of the national equal treatment bodies was held in Brussels on 25 February The goal of the meeting was to share the experiences of each authority (presenting good practices) and to discuss with each other and the European Commission about challenges and actions. At the 2010 meeting the participants concluded that as an effect of the economic crisis, statistics showed a worsening situation in all European countries, mostly in the areas of ethnic origin, age and disability. The Commission informed the participants on the programs planned by the EU in 2010 (Diversity Day 8 May 2010, Budapest, Millenáris; Youth Hostel Action; EU Journalist Award). 102 The reason for the founding of a large number of organisations was that the EU accepted directives 2000/43/EC and 2002/73/EC on implementing racial and gender equality and required that an organisation made up of the member states (implementing organ) be set up for monitoring compliance with its provisions. Nevertheless, the directives do not provide further guidance for the functioning of these bodies, this is the reason for their diversity. 103 Strengthening the co-operation between specialized bodies for the implementation of equal treatment legislation, PROGRESS European Community Programme for Employment and Social Solidarity. 105 MOSTRA, Annual Meeting of National Equality Bodies 67 Equal Treatment Authority

70 Equinet and the Fundamental Rights Agency of the EU held their second meeting in Vienna, the seat of the FRA. Cooperation between the two organisations began in 2009, and within this framework at least one general meeting is held each year in addition to the thematic meetings in relation with common projects, research and tasks. The goal of the general meeting is that the two organisations come up with proposals for reasonable priorities for each other s operation in the year concerned, thereby providing feedback and points of orientation. The lawyers of the Authority attend the training courses organised under the auspices of Equinet on a regular basis. In April 2010, the subject of the training was experiences of carrying out impact studies regarding equal opportunities and their follow-up and future utilisation. The implementation of impact studies on equal opportunities has a tradition in Anglo-Saxon territories, the purpose being that taking into account the legal environment and involving the members of the target groups the firms and other relatively large entities (e.g. cities) organise their equal opportunity policies in a systematic way. The goal of impact studies is to assess the effects of regulations developed in relation with both the clients of the firm and its employees (Who will benefit from the regulation? How can the opinion of target groups be adequately channelled in order to avoid and/or reduce dysfunctional operation by building in proper feedback mechanisms?). The preparation of an equal opportunity study is an extremely complex task which is to be preceded by research and the preparation of an equal opportunity plan, followed by its implementation, continuous monitoring and funding/supporting. A Roma Round Table was held in the office of the Greek ombudsman on 20 September 2010 under the auspices of Equinet. In 2009, Equinet launched the so-called Roma initiative, in the framework of which in April of last year it published its position in relation with making equality legislation work for Roma and Travellers. The national equal treatment authorities/ombudsmen and the delegates of ministries responsible for equal opportunities were present at the round table meeting (Bulgaria, Greece, Spain, Slovenia, Ireland, Sweden, Denmark, Slovakia, Austria, Belgium, the Netherlands and Romania). In October 2010, Equinet organised a training in Bratislava with the title Tools of evidence in discrimination cases. The theoretical topics included the assessment of tools of evidence, their strengths and weaknesses, the specific problems of evidence issues appearing in the work of the equal treatment authorities, the role of the civil sector in providing evidence, testing as a tool of evidence as well as other alternative means of evidence. The Austrian solution can be considered good practice, as for the judgment of cases concerning equal wage for equal work, Austria established a database based on data supply by employers, from which information on wages can simply be downloaded. Perhaps the most dominant element of Equinet is the functioning of the working groups, in which the Authority actively participates. There are four working groups. 106 A meeting of the Policy Formation working group took place in Brussels in May The topic of the meeting was discrimination against transsexual persons. Furthermore, as 2010 was the European Year for Combating Poverty and Social Exclusion, the participants discussed whether the members had the opportunity to conduct an investigation within the given legal framework on poverty (financial status) as a protected characteristic, and they also discussed developments in the issues of equal opportunities and equal treatment during 106 The working groups were renamed upon the acceptance of the new strategy of Equinet for the period Their new names are: Equality Law in Practice, Strategy Development, Communication Strategies and Practices, and Policy Formation. Equal Treatment Authority 68

71 the recession. The participants concluded that the prestige of equal treatment bodies had diminished as an effect of the crisis. At its autumn meeting, the working group reviewed the partially complete materials presented by the members, and the task of the Authority was the general elaboration of a communication strategy. All participants agreed that the official responsible for communication with each organisation, who is properly informed on the regulations applied by the authority concerned and on the relevant anti-discrimination directives of the EU, should play an important role everywhere, but the financial possibilities are limited. The general remark was made that it is difficult to find target groups especially in the case of the Roma who have representatives or forums for interest representation through which they are able and have the opportunity to cooperate with the equal opportunity bodies. The Greek member of the working group noted that the colleagues of the Greek ombudsman (GO) visit the Roma settlements, however, due to the internal conflicts within the Roma they are unable to make contact with any interest representation group with which everyone agrees and which is accepted by everyone. The members agreed that occasionally time has to be spent on the further training of trainers since, on the one hand, the legal basis is constantly changing and, on the other hand, challenges change, too. It would be optimal if the training materials were available for each authority in book form and that could be updated and adjusted to new demands. The members raised the issue that the website operated by the authorities and the equal opportunity bodies should offer links for the target groups most affected by discrimination to inform them where, when and in what form they can get help, who provides legal representation to them free of charge, when they have consultation hours, etc. From 2011, the name of this working group is Equality Law in Practice, and the 4 working groups have to communicate with each other in the future on a continuous basis, thus the 2011 topics are to be negotiated, as well. The Dynamic Interpretation working group held its first annual meeting in May The task of this working group is to compare and interpret the different legal systems. Two legal cases presented in advance were discussed at the meeting, offering an opportunity for the member organisations to ask the opinion of the working group in the cases concerned. The second meeting of the working group was held in September The subject was the strategy of Equinet for the next year, and the working group also had to designate the main directions of its functioning in the future. In addition, the participants discussed other legal cases received during the year. The Strategic Enforcement (new name: Strategy Development) working group had its meeting in October The most important element of the work of the working group in 2010 was the elaboration of the strategy of Equinet for the years The Equal Treatment Authority was given the task of elaborating the communication strategy. The participants of the meeting discussed the draft materials submitted by the members. The Promotion of Equality working group dealt in 2010 with the organisation of a common database to be created by the equal treatment authorities. Within this context, the members discussed national and the EU norms that may hinder the establishment of the database (protection of personal data) and the types of information 69 Equal Treatment Authority

72 collected by the authorities in relation with the complaints received. The group intends to involve an external expert in its work for further assistance who will compile questionnaires and analyse the answers received. Equinet held its Annual General Meeting (AGM) in November The 4 th Equality Summit was held before that. At the AGM, following the report of the board of directors, the 2010 budget was approved. The AGM unanimously approved the admission of Serbia. The participants accepted the strategy for the next period and amended the rules of electing the members of the board of directors in order to achieve a more fair geographic distribution. The Fundamental Rights Agency of the European Union (FRA) The Agency began operation in Vienna on 1 March 2007 with the goal of conducting research on the enforcement of the Fundamental Rights Charta of the EU and analyses the enforcement of the rights entailed therein within the EU. Its predecessor was the EUMC 107, the activity of which was limited to the area of elimination of racism and xenophobia. The task of the FRA is the general examination of the legislation of member states and the publication of experiences in the form of reports in order to eliminate deficiencies and abuses. The FRA does not investigate in individual cases. The Authority participates in the conferences and events organised by the FRA. In May 2010, the Agency organized in Vienna its consultation entitled Strengthening the Fundamental Rights Architecture in the EU. The main topic of the conference was the highlighting of the diversity of the areas of equal treatment in the member states, furthermore, to find out whether for increasing the efficiency of the operation closer cooperation and complementing of each others work of the bodies are necessary. The goal of the conference was to make participants familiar with the European situation in light of the polls conducted by the FRA in 2008 (knowledge of the Fundamental Rights Charta, the equal treatment bodies in the member states and their role, impacts of the Racism Directive). The assessment of rights awareness concluded that its rate was still low in the target groups, therefore the establishment of a fundamental rights culture needs continuous work and it is very important that the law protection institutions get closer to the people not only at the level of words, but also at the level of reality as one of the speakers said: You have to go out to the villages. No surprising outcome was obtained concerning the equal treatment bodies, either: with most institutions, the tasks and the resources available for accomplishing them were not proportional, and the safeguarding of the clarity of jurisdiction is important, within which the enforcement of the requirement of equal treatment and the providing of fundamental rights should be clearly separated. It was also mentioned at the conference that the newest elements of the institutional system of fundamental rights protection are the National Institutes of Human Rights set up on the basis of the Paris Principles adopted by the UN in The chairman of the Authority met Morten Kjaerum, director of the FRA, in autumn 2010, where the Authority was introduced and its most typical cases presented. 107 European Monitoring Centre on Racism and Xenophobia 108 Adopted by the Human Rights Commission of the UN in its resolutions No. 1992/54 of 1992 and No. 48/134of Equal Treatment Authority 70

73 Academy of European Law (ERA) The staff of the Authority attend training courses organised by the ERA on a regular basis. The ERA is based in Trier (Germany) and it is aimed at improving knowledge and understanding of European law and disseminating good practices. It contributed to a great extent to the establishment of the Academy that European integration was accelerated and a knowledge centre became necessary to facilitate familiarity with European law. The institution was founded in 1992 upon the initiative of the European Parliament in the form of a foundation. The Academy organises training courses in the field of European private law, business law as well as public and criminal law, and human rights (incl. the enforcement of the requirement of equal treatment). In July 2010, staff members of the Authority attended the labour law seminar of the ERA, where they elaborated on the issues of free movement of labour, compliance with the requirement of equal treatment in the sphere of employment and the relocation of enterprises. The participants visited the European Court of Justice in Luxembourg. In the context of the analysing of the substantive elements of employment, the topics of the EU regulation of labour-borrowing, part-time and fixed-term employment, working hours, and EU regulations regarding employment relationships were addressed. The course provided the participants with the opportunity to obtain comprehensive information on the EU s legal framework regarding labour law issues and the practices of the European Court of Justice in this respect. In November 2010, the Authority s staff attended a seminar on the practical application of equal treatment principles (2000/78 and 2000/43). Other relations In addition to the above, the Authority makes an effort to utilise all opportunities for the improvement of the knowledge of its staff, therefore attending training courses dealing with legal issues are a priority. A staff member of the Authority attended a seminar organised by the European Commission s Directorate-General for Employment, Social Affairs and Equal Opportunities on the subject of enforcement of rights related to equal opportunities in practice. The participants had the opportunity to expand their knowledge on the resolution of issues arising in the application of anti-discrimination principles. The Authority is involved in the work of the European Network of Independent Legal Experts in the Non-discrimination Field, as well. In this framework, it presented its opinion on the analysis of the labour market status of the Roma and migrants, and the draft national report describing the labour market status of LGBT groups. It is related to the international activity of the Authority that an important element of its scope of responsibilities is to take part in the preparation of the national reports on various human right topics and to assist in their compilation by sharing its practical experience in the application of law and by supplying information. Thus, in 2010 we were involved in the negotiations concerning the preparation of the country report for the Human Rights Council of the UN, and in November 2010 in the subjects of Roma integration and of equal opportunities between women and men. Experts and working groups also contacted the Authority in 2010 regarding equal opportunities and anti-discrimination and among others we received eight researchers 71 Equal Treatment Authority

74 from the Global Network for Public Interest Law (PILnet) as well as civil servants from the Swedish ministry of equal opportunities in the framework of a study trip. Together with the National Transport Authority, the Equal Treatment Authority was involved in the completion of a questionnaire compiled by the Steer Davies Gleave (SDG) group upon the assignment of the European Commission in the framework of an assessment conducted in the member states in relation with the enforcement of Regulation EC/1107/2006, a part of which was interviewing the national authorities. The regulation concerns the rights of disabled persons and persons with reduced mobility when travelling by air. The questionnaires and the interviews were analysed in spring 2011 in Brussels. VII. Results of the TÁMOP project The Authority launched the project TÁMOP 5.5.5/08/ under the title Combating Discrimination, Shaping Societal Attitude and Strengthening the Work of the Authority, supported by the European Union and national co-financing. Relying on the resources of the Social Renewal Operational Programme (TÁMOP), the scope of activity of the Authority became broader and capable of complying with social needs beyond statutory law implementation. Discrimination in Hungary concerns several social groups and is present in many areas of life. Although regulations and the Authority s functioning offer the possibility of taking actions against discrimination for those concerned, discrimination often remains hidden because the people concerned do not possess the required knowledge in the field of rights protection or have no opportunity to make use of it. For the Roma, a further difficulty is the lack of trust towards official organs and authorities. Beyond its scope of statutory competence, the Authority also makes an effort to change this by disseminating its knowledge and experience accumulated in the field of law enforcement through the project. The network of equality referees at county level established under the project has been operational from September 2009 and made the services of the Authority accessible at county and small region levels, near to the clients. Legal possibilities or threatening with sanctions are not sufficient to act against discrimination. The TÁMOP program provides complex communication instruments for the Authority to achieve the favourable changes in attitude needed for social sensitisation. In order to uncover the discriminatory mechanisms present a large number of areas of life, background research extended to 7 areas is part of the TÁMOP project, as well. Below, we give a detailed account on four key areas of the TÁMOP project: 1. the national referee network, 2. training courses, 3. research work and 4. communication. 1. The national network of equal treatment referees The Equal Treatment Authority has been functioning in Budapest since its founding in It has no regional organs. As principal rule, within the Authority s proceedings hearings are conducted at the place of residence of the complainant, and clients could personally visit the Authority s staff members only in its Margit körút office. The TÁMOP project changed this situation by setting up the network of equality referees, which has been functioning since 1 September In the network, equal treatment referees provide free customer service in county capitals every week where they receive victims of discrimination and other clients. In the separate customer service area which is adequate for confidential discussions, clients may receive not only advice. The referees provide professional help in preparing the complaint and forward it to the Authority. The equal treatment referees are always lawyers with a large amount of experience who visit the small region centres of their counties on a Equal Treatment Authority 72

75 regular basis, as well. Besides customer service, they are widely involved in local technical and civil partnerships, school programs, contribute to raising awareness about the requirement anti-discrimination, and in sharing knowledge on the requirement of equal treatment. In most counties, the National House of Opportunities Network provides space and infrastructure for the referees, and in several counties civil society organisations provide a place for referees and the services they provide. Information on the consultation hours of the referees is available in the homepage of the TÁMOP project. The Authority documents the results and measures the satisfaction of clients in each area of the TÁMOP project. In 2010, referees received 1,116 clients and 149 petitions were drafted at such consultations. In most of the cases in 2010, legal advice was given to clients. The partners of the Authority, nevertheless, provide useful information to clients visiting the referees even if the case does not fall within the scope of the Authority s competence, and they make the law application work of the Authority significantly easier by filtering the cases and lodging proceedings with the Authority only if the complaint concerns discrimination. The information disseminating activity of the referees also plays an important role in improving the rights consciousness of the clients by making the legal regulations concerning the requirement of equal treatment widely known. Among the clients who contacted the equal treatment referees in 2010, 471 rated the service quality at 9.51 in average on a 0-10 scale. In 2010, we published several interviews with referees on our homepage. 2. Training series on the enforcement of equal treatment and the improvement of social sensitivity The series was launched in September 2010 with 70 training courses envisaged and comprises 30-hour accredited courses based on the training material developed by the staff of the Authority working on the application of the law. The two modules of the training program are: equal opportunities and attitude formation for sensitisation, and anti-discrimination and case law. The practical part of the training is based on an analysis of specific discrimination cases investigated in statutory proceedings. This offers an unprecedented opportunity for the successful achievement of the abovementioned objectives. A Certificate verifies the completion of the training. As a result of the training program, participants will be able to recognise the various forms of discrimination, to choose the proper method of enforcing their rights, their rights enforcement capabilities become more effective and they obtain more experience in case law. The participants are able to obtain the competences required to public interest representation and the knowledge needed for interest representation. Besides getting familiar with the particulars of equal opportunities, our goal is to develop a professional and personal commitment to the subject, and its strengthening by attitude formation. The training improves the personal and technical skills that support the participants in enforcing the principle of equal treatment in their work and in life situations. In 2010, the project staff organised 7 training courses attended by 132 participants. The feedback of the participants verified the assumption that the best guarantee for the success of the training is if the training material is developed and the lessons are held by those who are applying the law, and the sensitisation course is led by a trainer possessing extensive experience and special knowledge also on equal opportunities. Our advanced training courses earned the approval of the participants. On a scale from 0 to 10, our training courses 73 Equal Treatment Authority

76 in 2010 were rewarded with an average score of 8.8. Many people already signed up for our December and January programmes because they heard from their friends, colleagues or acquaintances that they can get practice-oriented training and high-standard knowledge in technical areas not dealt with at school. We defined the target groups of our training courses very broadly: we welcome those to our courses held continuously till 2013 who are affected because they possess a protected characteristic, and those who come into contact with such individuals in their work or in any other situation. The latter includes for instance the local government staff. Training courses in 2010were held in Budapest, and the Authority provided accommodation and catering to participants coming from the countryside and reimbursed their travel costs from the budget of the TÁMOP project. The trainings are led by the TÁMOP project leader, who has experience as a lawyer, sociologist, social policy expert and economist and who is an experienced trainer and also leads the sensitisation exercises. The legal trainers are staff members of the Equal Treatment Authority. We advertised the training courses continuously by targeting potential participants, but the dates of upcoming trainings are also available on the project s subpage on the Authority s website entitled TÁMOP We improve the training material by using the experience of courses on a continuous basis and expand the subjects so as to forward a teaching material tried and verified in a wide range of practical applications to higher education and adult teaching with the objective of making it part of the curriculum as fulfilling a long-term objective for Research within the TÁMOP project Through the research program of the TÁMOP project, the Equal Treatment Authority strives to uncover discriminatory mechanisms. Our long-term goal is to forward our research materials to everyone concerned by employment and public administration. In the year 2010, from the 7 research programmes of the TÁMOP project, research began in 5 subjects. Research programmes were launched in four subtopics within the subject Equality in the world of labour : 1. Equal pay for equal work, 2. Hiring practices of employers in light of discrimination, 3. Examination of the impact of the equal opportunities scheme and 4. Interrelations between the attitudes of employers and the employment of disabled employees in the labour market and providing acceptable working conditions for them. In June 2010, this research program concluded a cooperation agreement with the TÁMOP program with the aim of cost efficiency and to avoid overlapping. This cooperation offered the possibility to make inquiries concerning the four research subjects with a sample of nearly 10,000 people. We asked questions from employees and employers from four different questionnaires with a face to face method. By complementing the questionnaires method with a quantitative method (10 focus groups and 30 semi-structured interviews), by the autumn we had acquired rich database. Ipso Ltd. collected and recorded the information. The studies are being carried out by Endre Sik, Borbála Simonovits, Anikó Soltész, Júlia Koltai and Veronika Niederfiringer. The results will be ready for publication in the second quarter of 2011 in the subpage of TÁMOP Equal Treatment Authority 74

77 Based on her studies concerning discrimination in the labour market, researcher Borbála Simonovits held a presentation in front of the media at the experience exchange conference of the project on 30 April Preparatory work was carried out in 2010 for research on the impact assessment of self-government programmes aimed at the elimination of segregated living environments in particular in the case of Roma, the development of proposals for solution and actions as well as the mapping of exclusion mechanisms in public administration and legislation with special regard to the decisions concerning the Roma inhabitants of settlements. We put out a call for tenders for these two research programs (Nos. 5 and 6) in the first half of 2011, and the results are expected by spring In our research program, the poll based on a nation-wide representative sample with the Roma, disabled persons and the LGBT community in focus bears the number 7 and deals with the improvement of rights awareness related to equal treatment. The nation-wide representative study will be conducted by renowned researchers of the Institute of Sociology of the Hungarian Academy of Sciences. The objective of the research is partly the mapping of the rights awareness among Hungarian society, and mainly of the situation of discriminated groups with protected characteristics (women, the Roma, disabled persons and LGBT persons). In the first phase of the research, a sample of 1000 people was complemented by sub-samples of 200 people each. The second phase of research is due for 2013, within which the researchers are going to measure whether any change has taken place concerning rights awareness within two years as an effect of the TÁMOP project, and, by applying qualitative methods (focus groups) we will gain deeper insight into the situation of women, the Roma, disabled persons and LGBT people. We also conduct our own research within the TÁMOP project among the participants of our training courses, also in two phases. This provides an opportunity to compare the increased rate of rights awareness among the participants and the Hungarian population. 4. Complex communication in the TÁMOP project In the communications programme of the project, the Authority undertakes social sensitisation, the popularising of the Authority s work, and through the broad dissemination of knowledge the improvement of rights consciousness. From a communications point of view, the most important event in the year 2010 was the youth action entitled Young people against discrimination. In response to the call for submissions to the competition, we received 59 short stories, 7 photos, 332 graphics and paintings and 18 sculptures. Both the short stories and the fine art works were judged by 3-member professional juries. The announcement of results took place in the ceremonial hall of the Szabó Ervin Metropolitan Library on 24 June We invited to the event the ten competitors who won the first ten places in the three categories together with a family member and the teacher who helped each of them, the members of the jury, the representatives of organisations supporting the action as well as the media. As verified by the registration sheets of the event, there was much interest since all those invited were present except for those who were abroad altogether 81 people, not counting the press. Because of failed public procurement attempts, we implemented the event under own organisation and looked for sponsors for financing the awards. 75 Equal Treatment Authority

78 In autumn 2010 we launched a national travelling exhibition under own organisation from the works received in the framework of the youth action. By the end of December, the exhibition entitled Live from the playground was available to visitors in 3 locations: the cities of Csepel, Szentendre and Esztergom. We organized opening ceremonies for the guests in all three settlements. The invited guests included decision makers from local governments and minority self-governments, leaders of education and public education institutions as well as representatives of the local media. The travelling exhibition series promotes discussions in various communities. Equal Treatment Authority 76

79 VIII in numbers 77 Equal Treatment Authority

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86 Equality referees County Name of equality referens Phone Office adress, Office hours Pest megye Baranya megye Tolna megye Heves megye Szabolcs- Szatmár-Bereg megye Hajdú-Bihar megye Bács-Kiskun megye Zala megye Gyôr-Moson- Sopron megye Békés megye Csongrád megye Vas megye Fejér megye Veszprém megye Borsod-Abaúj- Zemplén megye Nógrád megye Jász-Nagykun- Szolnok megye Komárom- Esztergom megye Somogy megye Budapest Budapest Dr. László Bihary Dr. Zoltán Gajda Dr. Burrat Husam Husein Dr. Zoltán Lukács Vassné dr. Hedvig Kemecsei Dr. Zita Jaczkovits Dr. Edina Tóth Dr. Orsolya Kovács Dr. Péter Dolgos Dr. Beáta Bodnár Dr. Éva Kiss Dr. Ágnes Jójárt Dr. Balázs Kóródi Dr. Alexandra Fábián Dr. Regina Hronszky Dr. Árpád Csonka Dr. Simonné Nóra Kormányos Dr. Júlia Kócza Dr. Valéria Duenas- Berdár Dr. Ágnes Baki Dr. Erna Csókás +36/06/70/ /06/70/ /06/30/ /06/20/ /06/70/ /06/30/ /06/70/ /06/30/ /06/20/ /06/20/ /06/30/ /06/30/ /06/70/ /06/30/ /06/70/ /06/20/ /06/20/ /06/30/ /06/20/ /06/1/ , +36/06/1/ /06/20/ Pest Megyei Esélyek Háza: H-2600 Vác, Rákóczi út 36.; tel: +36/27/ ; Pécsi Esélyek Háza: H-7621 Pécs, Rákóczi út 55.; tel: 72/ ; Szekszárdi Esélyek Háza: H-7100 Szekszárd, Béla tér 6.; tel: +36/74/ ; Egri Esélyek Háza: H-3300 Eger, Knézich Károly u. 8.; tel: +36/36/ ; +36/36/ ; Nyíregyházi Esélyek Háza: H-4400 Nyíregyháza, Országzászló tér 7. III/29.; tel: +36/42/ ; Debreceni Esélyek Háza: H-4026 Debrecen, Monti ezredes u. 7.; tel: +36/52/ ; +36/52/ ; Kecskeméti Esélyek Háza: H-6000 Kecskemét, Bajcsy-Zsilinszky krt. 2.; tel: +36/76/ ; Keszthelyi Esélyek Háza: H-8360 Keszthely, Szalasztó u. 1.; tel: +36/83/ ; Gyôri Esélyek Háza: H-9021 Győr, Apáca út 18.; tel: +36/96/ ; +36/94/ , Battonyai Esélyek Háza: H-5830 Battonya, Fő u. 91.; tel: +36/68/ ; Szegedi Esélyek Háza: H-6721 Szeged, Eszperantó u. 1.; tel: +36/62/ , +36/30/ ; Szombathelyi Esélyek Háza: H-9700 Szombathely, Kiskar u. 5.; tel: +36/94/ ; Székesfehérvári Esélyek Háza: H-8000 Székesfehérvár, Budai u. 90.; tel: +36/22/ ; Veszprémi Esélyek Háza: H-8200 Veszprém, Kossuth u. 10. I./107.; tel: +36/88/ ; Miskolci Esélyek Háza: H-3525 Miskolc,Király u.10.; tel: +36/46/ ; Salgótarjáni Esélyek Háza: H-3100 Salgótarján, Lôwy Sándor u ; tel: +36/32/ ; Szolnoki Esélyek Háza: H-5000 Szolnok, Kossuth L. u. 2., fsz , tel: +36/56/ ; +36/56/ ; Esztergomi Esélyek Háza: H-2500 Esztergom, Petôfi S. u. 21.; tel: +36/33/ ; Kaposvári Esélyek Háza: H-7400 Kaposvár, Csokonai u. 3.; tel: +36/82/ , 250 mellék; Esélyek Háza Jogsegélyszolgálat: H-1076 Budapest, Wesselényi u. 17. I. em.; Egyenlô Bánásmód Hatóság: H-1024 Budapest, Margit körút 85. VII. emelet. Elôzetes telefo nos bejelentkezés; +36/1/ ; Kedd , Péntek Hétfô , Szerda Hétfô Csütörtök Szerda Hétfô Szerda Kedd Hétfô Csütörtök Csütörtök Hétfô , Szerda Hétfô , Szerda Hétfô Szerda Péntek Hétfô Kedd Hétfô , Péntek Kedd , Péntek Szerda , Péntek

87 Hungarian Equal Treatment Authority H-1024 Budapest, Margit krt. 85 Mailing adress: Pf Budapest Main telephone number: Phone: Fax: Further information President: Dr. Ágnes Honecz Vice-president: Enikô Magyar Head of the Legal Department: Dr. Edit Gyarmati 85 Equal Treatment Authority

88 ETA employees of the legal department Dr. Anikó Gáti Dr. Katalin Gregor Dr. Adél Kegye Dr. Ádám Kéri Dr. Valéria Kiss Dr. Borbála Kossuth Dr. Andrea Sebestyén Dr. Adrián Szász Dr. Judit Varga Employees of the TÁMOP office Dr. Márta Pánczél Tímea Szabados Chripkóné Róza Kosár Melinda Csekô Dr. Erna Csókás Orsolya Pánczél Márta Takács Andrea Wéber Equal Treatment Authority 86

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