a)  Hungary / b)  Constitutional Court / c) / d)  06-12-2012 / e)  40/2012 / f)  On the annulment of certain provisions of the Act on Allowances to Persons with Reduced Work Capacity / g)  Magyar Közlöny (Official Gazette), 2012/163 / h) .
Keywords of the systematic thesaurus:
General Principles - Clarity and precision of legal provisions.
Fundamental Rights - Equality - Scope of application - Social security.
Fundamental Rights - Equality - Criteria of distinction - Physical or mental disability.
Keywords of the alphabetical index:
Disability, discrimination / Social welfare, arrangements / State, social guarantee.
The basic requirements of legal certainty and equal opportunity shall prevail during the transformation of the rehabilitation system.
I. In 2011 the rehabilitation system changed substantially. Previously, the employment prospects of persons with reduced capacity to work had been largely determined by two main types of welfare provision: disability pensions and rehabilitation subsidies. In the last two decades several attempts had been made to curb disability pension claims by tightening the rules. The disability pension used to function depending on the length of time employed, on the income acquired during employment, and on the extent of the disability. As of 1 January 2012 the disability pension was abolished and substituted by a quasi-subsidy system that guarantees sick-leave services. The new rehabilitation scheme consists of two pillars: rehabilitation allowance and disability benefit. Those whose capacity to work could have been partially or fully rehabilitated, receive rehabilitation allowances. Disability subsidy can be given to people with 80-100% disability who were essentially previously deemed unfit for work, as well as persons who had previously received disability pensions and had by 31 December 2011 turned 57 years old.
The Commissioner of Fundamental Rights requested the Constitutional Court to review the constitutionality of Sections 7.4 and 13.2.d of Act CXCI of 2011 on Allowances to Persons with Reduced Work Capacity (hereinafter, the "Act"). According to Section 7.4 of the Act, rehabilitation allowance has to be suspended in the case of engagement in remunerative activities, participation in public works or in the case of incapacity for work. Under Section 13.2.d of the Act, disability benefit has to be cancelled when beneficiaries engage in income earning activities and their incomes in average for three consecutive months surpass 150% of the minimum wage. According to the Commissioner, the principle of equal opportunity ensured by Article XV of the Fundamental Law was infringed by the regulation restricting access to employment for people receiving low level allowances.
II. The Court held that the concept of the principle of equal opportunity under the Fundamental Law of 2012 is the same as that under the previous Constitution. Under Article XV.4 of the Fundamental Law, special measures shall be taken to facilitate the realisation of equal opportunity. Article XV.5 of the Fundamental Law states that special measures shall be taken to protect children, women, the elderly and persons living with disabilities. Previously, the constitution did not contain a reference to persons living with disabilities; therefore the Court in the instant case had to interpret this notion. The Court adopted the legal definition in Article 1 of the United Nations Convention on the Rights of Persons with Disabilities, according to which persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. The Court chose this definition because it is more inclusive than the one used by Act XVI of 1998 on the Rights of the Persons with Disabilities.
The Court considered that it follows from Articles XV.4 and  XV.5 of the Fundamental Law that the legislator has to create rules which help improve the social position of disadvantaged groups. These are provisions which enable the legislator to decide where and to what extent it wishes to employ measures for rendering opportunities equal. Once these measures are introduced, they should comply with the principles of legal certainty and equal opportunity. That means that these measures should help those in need to participate in society effectively on an equal basis with others.
The Court held that the provision stipulating the suspension of the disbursement of rehabilitation allowances did not meet the requirements of legal certainty and equal opportunity. The Court found it disconcerting that any income, no matter how small, resulted in the suspension of rehabilitation allowances even if the need thereof persisted and an income necessary to minimal subsistence would have been ensured. The second reason for annulling Section 7.4 of the Act was that it did not facilitate taking up gainful employment or activity by those in need and their earliest entry to a full and equal (to those not in need) social environment – on the contrary, it had an adverse effect. However, the Court rejected the petition to annul Section 13.2.d of the Act, since under this provision only having an average income for three consecutive months surpassing 150% of the minimum wage resulted in cancelling the disability benefit.
III. Three justices – István Balsai, Egon Dienes-Oehm, Mária Szívós – attached dissenting opinions to the decision.
Supplementary information:
Parliament has already adopted Section 30.2 of Act CCVIII of 2012, according to which the disbursement of rehabilitation allowances shall be suspended only if beneficiaries simultaneously engage in continuous income earning activities for more than twenty hours per week.