European Commission v Hungary.
Date: 2012-11-06
41. It must be recalled, in that regard, as is apparent from settled case‑law, that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State at issue found itself at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, inter alia, judgment in Case C‑209/02 Commission  v Austria  [2004] ECR I‑1211, paragraph 16, and judgment of 19 July 2012 in Case C‑565/10 Commission  v Italy , paragraph 22).
45. It is important to note in that regard, however, that, in accordance with the case‑law referred to in paragraph 41 of the present judgment, the date which must be used by the Court for the purpose of determining whether Hungary was in breach of its obligations is 7 April 2012. The retroactive nature of the Alkotmánybíróság’s judgment cannot therefore render the present action devoid of purpose since the repeal of Articles 90(ha) and 230 of the Law of 2011 on judges results from an event which took place after that date and which, for that reason, cannot be taken into account.
48. In order to determine whether the Commission’s complaint against Hungary is well founded, it should be recalled that, under Article 2(1) of Directive 2000/78, ‘the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination on any of the grounds referred to in Article 1’ of that directive. Article 2(2)(a) of that directive states that, for the purposes of the application of Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another in a comparable situation, on any of the grounds referred to in Article 1 of that directive (Case C‑447/09 Prigge and Others [2011] ECR I‑8003, paragraph 42).
50. Individuals engaged in those professions and who have reached the age of 62 are in a comparable situation to that of younger individuals who are engaged in the same professions. However, the former, due to their age, are required automatically to cease their functions (see, by analogy, Fuchs and Köhler , paragraph 34, and Prigge and Others , paragraph 44).
55. It follows, however, from the first subparagraph of Article 6(1) of Directive 2000/78 that a difference in treatment based on age does not constitute discrimination if, within the context of national law, it is objectively and reasonably justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary ( Prigge and Others , paragraph 77, and judgment of 5 July 2012 in Case C‑141/11 Hörnfeldt , paragraph 21).
58. It cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation at issue as regards the aim pursued has the effect of automatically excluding the possibility that that national legislation may be justified under that provision. In the absence of such precision, it is important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to its legitimacy and as to whether the means put in place to achieve that aim are appropriate and necessary ( Fuchs and Köhler , paragraph 39, and Hörnfeldt , paragraph 24).
60. Secondly, as regards the legitimacy of those objectives, it must be noted that the Court has already held that the aims that may be considered ‘legitimate’ within the meaning of the first subparagraph of Article 6(1) of Directive 2000/78 and, consequently, appropriate for the purposes of justifying a derogation from the principle prohibiting discrimination on grounds of age are social policy objectives, such as those related to employment policy, the labour market or vocational training (Case C‑388/07 Age Concern England [2009] ECR I‑1569, paragraph 46; C‑88/08 Hütter  [2009] ECR I‑5325, paragraph 41, and Prigge and Others , paragraph 81).
61. As regards the aim of standardisation, in the context of professions in the public sector, it must be noted, as the Advocate General noted in point 63 of her View, that, in so far as such an aim ensures observance of the principle of equal treatment for all persons in a specific sector and relates to an essential element of their employment relationship, such as the time of retirement, that aim can constitute a legitimate employment policy objective.
62. As regards the aim of establishing a more balanced age structure facilitating access for young lawyers to the professions of judge, prosecutor and notary, suffice it to state that the Court has already had the opportunity to find that the aim of establishing an age structure that balances young and older civil servants in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age, while at the same time seeking to provide a high-quality justice service, can constitute a legitimate aim of employment and labour market policy ( F uchs and Köhler , paragraph 50).
66. In order to examine whether the provisions at issue go beyond what is necessary for achieving that objective and unduly prejudice the interests of the persons concerned, those provisions must be viewed against their legislative background and account must be taken both of the hardship they may cause to the persons concerned and of the benefits derived from them by society in general and the individuals who make up society (Case C‑45/09 Rosenbladt  [2010] ECR I‑9391, paragraph 73).
68. However, the provisions at issue abruptly and significantly lowered the age-limit for compulsory retirement, without introducing transitional measures of such a kind as to protect the legitimate expectations of the persons concerned.
80. In those circumstances, it must be held that the contested national provisions give rise to a difference in treatment which does not comply with the principle of proportionality and that, therefore, the Commission’s action must be upheld.