EN Official Journal of the European Union C 217/14

Action brought on 7 June 2012 — European Commission v Hungary

(Case C-286/12)

2012/C 217/31

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: J. Enegren and K. Talabér-Ritz, acting as Agents)

Defendant: Hungary

Form of order sought

— Declare that Hungary has failed to fulfil its obligation under Articles 2 and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (1) by adopting national legislation which provides for the compulsory termination at the age of 62 of the service of judges, prosecutors and notaries public — which gives rise to a difference of treatment on grounds of age which is not justified by a legitimate purpose and which, in any event, is not appropriate or necessary for the achievement of the stated purpose.

— order Hungary to pay the costs.

Pleas in law and main arguments

Under the Hungarian legislation on the compulsory maximum retirement age of judges, prosecutors and notaries public, the service of the members of such professions is to be terminated when they reach a certain age — currently 62 — whereas previously they could continue to work until the age of 70. The legislation at issue provides that the service of judges and prosecutors who have reached the maximum age before 1 January 2012 is to be terminated on 30 June 2012 and the service of judges and prosecutors who reach that age between 1 January 2012 and 31 December 2012 is to be terminated on 31 December 2012. For notaries public, the reduction of the compulsory retirement age from 70 to 62 will be applicable from 1 January 2014.

The Commission relies on the following pleas in law and arguments in support of its action for failure to fulfil obligations:

First, the Commission takes the view that the national legislation at issue constitutes a difference of treatment on the grounds of age under Article 2 of the Directive, given that it provides for less favourable treatment for judges, prosecutors and notaries public who have reached the new maximum compulsory retirement age than for all other working persons who have not reached that age.

If legislation which gives rise to a difference of treatment on the grounds of age is to be excluded from the prohibition on discrimination, it must fulfil the requirements laid down by Article 6(1) of the Directive. On the one hand, the legislation in question has to be objectively justified by a legitimate aim, and, on the other, the means of achieving that aim have to be appropriate and necessary (principle of proportionality).

In that regard, the Commission maintains that the legislation at issue does not expressly lay down a legitimate aim and nor is it possible to infer such an aim from its context, which is in itself a breach of the Directive, since it prevents the judicial review of the legality and proportionality of the national legislation. As regards the legitimacy of the aims alleged during the infringement procedure, the Commission states that only the aims relating to social policy can be considered capable of justifying an exception to the prohibition of discrimination on the grounds of age.

Finally, in the view of the Commission, the national legislation at issue is not appropriate or necessary for achieving the allegedly legitimate aims, given that (i) the transitional period of at most one and a half years is extremely short, having regard to the drastic reduction from 70 to 62 in the compulsory maximum age for service and (ii) the transitional period is not consistent with the general reform of retirement, under which the general retirement age is to be increased from 62 to 65 over a period of eight years between 2014 and 2022, which will give rise — after a period of only two years — to a new increase in the compulsory maximum age for service. Consequently, the Commission considers that the national legislation at issue disproportionately damages the legitimate interests of the judges, prosecutors and notaries public affected and goes beyond what is necessary to achieve its aim.

(1) OJ 2000 L 303, p. 16, ‘the Directive’.