HUN-2017-3-002
a)  Hungary / b)  Constitutional Court / c) / d)  14-11-2017 / e)  30/2017 / f)  On annulling Section 1.4a, b, Section 1.4b, 1.4f and 1.4g of Act CVI of 2011 on Public Employment and on the Amendment of Acts Connected to Public Employment / g)  Magyar Közlöny (Official Gazette), 2017/185 / h) CODICES (Hungarian).
 
Keywords of the systematic thesaurus:
 
 
Fundamental Rights - Equality - Scope of application - Employment.
Fundamental Rights - Equality - Criteria of distinction - Social origin.
Fundamental Rights - Civil and political rights - Right to private life.
Fundamental Rights - Civil and political rights - Right to family life.
Fundamental Rights - Civil and political rights - Inviolability of the home.
 
Keywords of the alphabetical index:
 
Public employment programme, conditions.
 
Headnotes:
 
Requiring those taking part in a public employment programme to keep their living space tidy as a condition of participation constitutes an indirect violation of the principle of general equality and discrimination relating to the right to private life.
 
Summary:
 
I. Under Article 24.2.e of the Fundamental Law and by Article 24.1 of Act CLI of 2011 on the Constitu-tional Court, the Commissioner for Fundamental Rights (hereinafter, the «Commissioner») requested the Constitutional Court to annul several sections and provisions of Act CVI of 2011 on public employment and on the amendment of Acts connected to public employment (hereinafter, «PEA»). Under these regulations, public employees would be excluded from the public employment programme for a period of three months if they did not comply with their obligation to keep their living environment (such as the garden and yard) tidy as required by local government decree.
 
The Commissioner argued that participation in the public employment programme, despite the fact that it had some social-political aims, should be considered as regular employment. In such cases, as a general rule, the Act I of 2012 on the Labour Code must be applied. In his opinion, the requirement by the PEA imposed on those who might apply for the public employment programme constituted a violation of Article XV.2 of the Fundamental Law (prohibition of non-discrimination). It imposed discrimination on public employees with no reasonable and constitutionally justifiable aim, by comparison to those employed under other legal relations.
 
In addition, the requirements imposed by the PEA established a violation of Article XV.2 of the Fundamental Law in relation to Article VI.1 of the Fundamental Law (right to private life, family life and respect of home) since such a core element of privacy had no connection with the aims of the public employment.
 
II. The Constitutional Court noted firstly that the legal status of the public employment programme, viewed in the light of the provisions of the Fundamental Law, seemed from its content to be a particular and atypical form of employment with a function that might be linked to the social care system. However, it should still be viewed as a form of employment not as a social benefit.
 
The Constitutional Court then considered whether it was justifiable to cause discrimination in the case of that group of jobseekers wishing to enter into public employment through the imposition of other conditions outside the scope of work. Those participating in the public employment programme tended to be in a difficult financial situation and to belong to the most vulnerable layer of the society, with remuneration even lower than the minimum wage. The Constitutional Court found that there was no reasonable justification whatsoever to prescribe a specific set of rules of conduct for this group of jobseekers. The challenged regulations resulted in practical hidden discrimination within this group, as the law actually only applied to those who lived in a disadvantageous and precarious material situation, making them comply with conditions that were bore no relevance to their work. The regulations were therefore contrary to Article XV.2 of the Fundamental Law (prohibition of discrimination).
 
Lastly, Article XV.2 of the Fundamental Law was also found to have been breached in relation to Article VI.1 of the Fundamental Law, which safeguards the right to private and family life and respect for home life, communications and good reputation. The Constitutional Court, based on its case-law, stated that the notion of privacy, the area protected by Article VI.1 of the Fundamental Law was closely connected to Article II of the Fundamental Law (the right to human dignity). The Constitutional Court found that requiring the jobseekers to keep their living space tidy under the PEA impinged on their rights under Article VI.1 of the Fundamental Law. Although Article XII.1 of the Fundamental Law prescribes that everyone should contribute to the performance of state and community tasks according to their abilities and possibilities, no conditions could be prescribed that violated individuals’ freedom and fundamental rights without constitutionally justified ground. The conduct demanded by the PEA was not related at all to the content of the work and so this requirement was regarded as an unacceptable restriction of Article VI.1 of the Fundamental Law.
 
III. Justice Ágnes Czine attached a concurring reasoning and Justice István Balsai, Justice Egon Dienes-Oehm, Justice Béla Pokol, Justice László Salamon, Justice Mária Szívós and Justice András Zs. Varga attached a dissenting opinion to the decision.
 
Languages:
 
Hungarian.