2003

Act CXXV. of 2003[1]

on equal treatment and the promotion of equal opportunities

The Parliament,

acknowledging every person’s right to live as a person of equal dignity,

intending to provide effective legal aid to those suffering from negative discrimination,

declaring that the promotion of equal opportunities is principally the duty of the State,

having regard to Articles 54 (1) and 70/A of the Constitution, the international obligations of the Republic and the legal acts of the European Union,

hereby enacts the following Act:

CHAPTER I

GENERAL PROVISIONS

Article 1

Pursuant to the principle of equal treatment, all natural persons abiding in the area of the Republic of Hungary and any groups thereof, as well as legal entities and organizations without legal entity, shall be treated with the same respect and deliberation and their special considerations shall be equally respected.

Article 2

Provisions pertaining to the principle of equal treatment, set out in separate legal acts, shall be applied in harmony with the provisions of this Act.

Definitions

Article 3

For the purposes of this Act

a) employment relationship: employment, public service relationship, civil service relationship, judicial service relationship, legal service relationship, prosecution service relationship, professional and contracted service relationship, professional foster parent relationship;

b) other relationship aimed at employment: work-from-home employment relationship, relationship created pursuant to a contract for employment, membership in a professional group, and elements of the co-operative membership and partnership activities under economic and civil law involving personal contribution and aimed at employment;

c) state aid: grants and subsidies from the budgets of the subsystems of public finances, and the provision in any form of other advantages involving loss of income by the state or state expenditure, also including state guarantees, and funds, donations and grants originating from the European Union, international organizations or other states if they are paid by the central budget;

d) public service: services aimed at satisfying the population’s basic needs pursuant to an obligation to enter into contract, especially electricity, gas, heat, water, sewage and waste treatment, public sanitation, postal and telecommunication services and scheduled passenger transport services;

e) social and interest representation organization: social organization or foundation whose objectives set out in its articles of association or statutes include the promotion of the equal social opportunities of disadvantageous groups or the protection of human or personal rights; and, in respect of a particular national and ethnic minority, the minority government; furthermore the trade union in respect of matters related to employees’ material, social and cultural situation and living and working conditions;

f) relative: the person defined as such by Paragraph b) of Section 685 of the Civil Code with the exception of fiancées.

Scope

Article 4

The principle of equal treatment shall be observed by

a) the Hungarian State,

b) local and minority governments and all bodies thereof,

c) organizations exercising powers as authorities,

d) armed forces and policing bodies,

e) public foundations, public bodies,

f) organizations performing public services,

g) institutions of elementary and higher education (hereinafter collectively: educational institutions),

h) persons and institutions providing social care and child protection services, and child welfare service,

i) museums, libraries, elementary educational institutions,

j) voluntary mutual insurance funds, private pension funds,

k) entities providing health care,

l) parties, and

m) budgetary organs that do not belong to points a)-l)

in the course of establishing their relationships, in their relationships, in the course of their procedures and measures (hereinafter collectively: relationship).

Article 5

In addition to the entities listed in Article 4, the following persons shall observe the principle of equal treatment in respect of the relevant relationship:

a) those who make a proposal to persons not previously selected to enter into contract or invite such persons for tender,

b) those who provide services or sell goods at their premises open to customers,

c) self-employed persons, legal entities and organizations without a legal entity receiving state aid, in respect of their relationships established in the course of their utilization of such a state aid, from the time when the state aid is utilized until the competent authorities can audit the utilization of the state aid in accordance with the applicable regulations; and

d) employers in respect of employment relationships and persons entitled to give instructions in respect of other relationships aimed at employment and relationships directly related thereto.

Article 6

(1) The scope of this Act does not extend to

a) family law relationships;

b) relationships between relatives;

c) relationships directly connected with the activities of the religious life of the churches; and

d) when Article 4 of this Act is applied - in the absence of a legal act providing to the contrary -, social organizations, relationships between the members of legal entities and organizations without a legal entity and relationships related to membership, except for the establishment of membership.

(2) Paragraph (1) d) cannot be applied at

a) the establishment and cancellation of membership relationship, and

b) the relationships of parties with the exception of the characteristic defined in Article 8 j).

Article 7

(1) Direct negative discrimination, indirect negative discrimination, harassment, unlawful segregation, retribution, and any orders issued therefore mean a breach of the principle of equal treatment, especially as set out in Chapter III.

(2) The principle of equal treatment is not breached by behavior, measure, condition, omission, instruction or practice (hereinafter collectively: provision) based on a characteristic related to any of the grounds referred to in Article 8, provided that they are found by objective consideration to have a reasonable explanation directly related to the relevant relationship.

Negative discrimination

Article 8

Provisions that result in a person or a group is treated less favorably than another person or group in a comparable situation because of his/her

a) sex,

b) racial origin,

c) color,

d) nationality,

e) national or ethnic origin,

f) mother tongue,

g) disability,

h) state of health,

i) religious or ideological conviction,

j) political or other opinion,

k) family status,

l) motherhood (pregnancy) or fatherhood,

m) sexual orientation,

n) sexual identity,

o) age,

p) social origin,

q) financial status,

r) the part-time nature or definite term of the employment relationship or other relationship related to employment,

s) the membership of an organization representing employees’ interests,

t) other status, attribute or characteristic (hereinafter collectively: characteristics)

are considered direct discrimination.

Article 9

Provisions that are not considered direct negative discrimination and apparently comply with the principle of equal treatment but put any persons or groups having characteristics defined in Article 8 at a considerably larger disadvantage compared with other persons or groups in a similar situation are considered indirect discrimination.

Harassment, unlawful segregation, retribution

Article 10

(1) Harassment is a conduct violating human dignity related to the relevant person’s characteristic defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around a particular person.

(2) Unlawful segregation is a conduct that separates individuals or groups of individuals from others on the basis of their characteristics as defined in Article 8 without a reasonable explanation resulting from objective consideration.

(3) Retribution is a conduct that causes infringement, is aimed at infringement, or threatens infringement, against the person making a complaint or initiating procedures because of a breach of the principle of equal treatment, or against a person assisting in such a procedure, in relation to these acts.

Positive discrimination

Article 11

(1) The measure aimed at the elimination of inequality of opportunities based on an objective assessment of an expressly identified social group is not considered a breach of the principle of equal treatment if

a) it is based on an act, on a government decree based on an act or on a collective contract, effective for a definite term or until a specific condition is met,

b) the election of a party’s executive and representative organ and the setting up of a candidate at the elections defined at the Act on the Electoral Procedures is executed in line with the party’s fundamental rules.

(2) A measure aimed at evening out a disadvantage shall not violate any basic rights, shall not provide unconditional advantage, and shall not exclude the consideration of individual circumstances.

CHAPTER II

PROCEDURES INITIATED BECAUSE OF A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT

Article 12

Claims arising from breaching the principle of equal treatment can be enforced in the scope of the procedures described herein or in separate legal acts, particularly in the scope of lawsuits under personal law, lawsuits under labor law, or procedures by the consumer protection, labor or offence authorities.

Procedure in case of a breach of this Act

Article 13

(1) The public administrative body with the overall responsibility (hereinafter: Authority) ensures compliance with the principle of equal treatment.

(2) The Authority works under the instruction of the Government, under the supervision of a member of the Government.

(3) The Authority cannot be directed at the exercise of duties defined in the Act.

(4) The Authority whose budget forms an independent title at the budgetary chapter of the Prime Minister’s Office is a budgetary organ vested with authorities on the chapter.

Article 14

The Authority shall

a) based on an application or in cases defined herein, conduct ex officio an investigation to establish whether the principle of equal treatment has been violated, and make a decision on the basis of the investigation;

b) pursuant to the right of claim enforcement in the public interest, initiate a lawsuit with a view to protecting the rights of persons and groups whose rights have been violated;

c) review and comment on drafts of legal acts concerning equal treatment;

d) make proposals concerning governmental decisions and legislation pertaining to equal treatment;

e) regularly inform the public and the Government about the situation concerning the enforcement of equal treatment;

f) in the course of performing its duties, co-operate with the social and representation organizations and the relevant state bodies;

g) continually provide information to those concerned and offer help with acting against the violation of equal treatment;

h) assist in the preparation of governmental reports to international organizations, especially to the Council of Europe concerning the principle of equal treatment;

i) assist in the preparation of the reports for the Commission of the European Union concerning the harmonization of directives on equal treatment;

j) prepare an annual report to the Government on the activity of the Authority and its experiences obtained in the course of the application of this Act.

(2) In the course of applying Paragraph (1) a) the Authority shall proceed in accordance with the provisions of Act IV of 1957 on the general procedures of state administration, with the differences regulated herein.

(3) The Authority shall perform its duties set out in Paragraph (1) c)-j) in co-operation with an advisory body whose members have extensive experience in the protection of human rights and in enforcing the principle of equal treatment, and have been invited by the Prime Minister to join the aforementioned body.

Article 15

(1) A violation of the principle of equal treatment within the scope of this Act shall be investigated by

a) the Authority or

b) another public administration body that has been granted authority in a separate act for assessing violations of the principle of equal treatment,

as chosen by the offended party.

(2) The Authority shall inform the public administration body granted authority by a separate act, and this public administration body shall inform the Authority, about the initiation of the procedure.

(3) If a procedure has been initiated before any public administration body pursuant to Paragraph (1), then in the same matter other public administration bodies

a) cannot proceed in the case of a violation of law committed against the same person,

b) shall suspend their procedure initiated in case of a violation of law committed against another person until a binding judgment is made in the matter.

(4) If the matter has been judged by any public administration body pursuant to Paragraph (1), then in the same matter other public administration bodies

a) cannot proceed in the case of a violation of law committed against the same person,

b) shall proceed using the facts of the case established in the binding decision in its procedure in case of a violation of law committed against another person.

(5) The Authority shall also proceed ex officio in cases where the principle of equal treatment is violated by the bodies defined in Article 4 (1) a)-d) if there are no procedures under way in the particular matter before any other public administration bodies.

(6) The Authority cannot investigate decisions and measures of public power by the Parliament, the President, the Constitutional Court, the State Audit Office, the Parliament commissioner of civil rights, the Parliament commissioner of national and ethnic minority rights, the Parliament commissioner the data protection, the courts and the public prosecution.

(7) The Authority may participate as an interpleader in the judicial review of a public administrative decision made by another public administrative body concerning the principle of equal treatment.

Article 16

(1) If the Authority has established that the provisions ensuring the principle of equal treatment laid down herein have been violated, they may

a) order that the situation constituting a violation of law be eliminated,

b) prohibit the further continuation of the conduct constituting a violation of law,

c) publish its decision establishing the violation of law,

d) impose a fine,

e) apply a legal consequence determined in a special act.

(2) The legal consequences set out in Paragraph (1) shall be determined taking into consideration all circumstances of the case, with particular regard to those who have been effected by the violation of law, the consequences of the violation of law, the duration of the situation constituting a violation of law, the repeated demonstration of conduct constituting a violation of law and the financial standing of the person or entity committing such a violation.

(3) The legal consequences set out in Paragraph (1) can also be applied collectively.

(4) The amount of the fine inflicted in accordance with Paragraph (1) d) can be from fifty thousand to six million Hungarian Forint. The fine shall be payable to the budgetary appropriation of the Republican Equal Opportunities Program.

Article 17

(1) The decision of the Authority cannot be appealed against in the scope of a public administrative procedure.

(2) The decision of the Authority concerning the violation of the principle of equal treatment cannot be altered or annulled by supervisory powers.

(3) According to the general rules applicable to public administration decisions, the court can review a decision of the Authority. The lawsuit falls within the scope of authority and exclusive competence of the Metropolitan Court.

(4) The Metropolitan Court shall proceed through a panel comprised of three professional judges.

Representation

Article 18

(1) Unless otherwise stipulated by the law, the social and interest representation organization and the Authority may act as a representative authorized by the party who suffered a violation of law in procedures initiated because of a violation of the principle of equal treatment.

(2) In a public administrative procedure initiated because of the violation of the principle of equal treatment, the social and interest representation organization is entitled to the rights of the client.

Burden of proof

Article 19

(1) In procedures initiated because of a violation of the principle of equal treatment, the injured party or the party entitled to assert claims of public interest must prove that

a) the injured person or group has suffered a disadvantage, and

b) the injured party or group possessing characteristics defined in Article 8.

(2) If the case described in Paragraph (1) has been proven, the other party shall prove that

a) it has observed or

b) in respect of the relevant relationship was not obliged to observe,

the principle of equal treatment.

(3) The provisions set out in Paragraphs (1)-(2) shall not apply to criminal procedures and to procedures of minor offences.

Assertion of claims of public interest

Article 20

(1) A lawsuit under personal or labor law because of a violation of the principle of equal treatment before the court can be initiated by

a) the Public Prosecutor,

b) the Authority, or

c) the social and interest representation organization,

if the violation of the principle of equal treatment was based on a characteristic that is an essential feature of the individual, and the violation of law affects a larger group of persons that cannot be determined accurately.

(2) The compensation and fines of public interest imposed in the lawsuit initiated by the application of Paragraph (1) are due to pay to the central budget.

CHAPTER III

ENFORCEMENT OF THE PRINCIPLE OF EQUAL TREATMENT IN VARIOUS situations

Employment

Article 21

It is considered a particular violation of the principle of equal treatment if the employer inflicts direct or indirect negative discrimination upon an employee, especially when the following provisions are made or applied in:

a) access to employment, especially in public job advertisements, hiring, and in the conditions of employment;

b) a provision made before the establishment of the employment relationship or other relationship related to employment, related to the procedure facilitating the establishment of such a relationship;

c) establishing and terminating the employment relationship or other relationship related to employment;

d) relation to any training before or during the work;

e) determining and providing working conditions;

f) establishing and providing benefits due on the basis of the employment relationship or other relationship related to work, especially in establishing and providing wages;

g) relation to membership or participation in employees’ organizations;

h) the promotion system;

i) the enforcement of liability for damages or disciplinary liability.

Article 22

The principle of equal treatment is not violated if

a) the discrimination is proportional, justified by the characteristic or nature of the work and is based on all relevant and legitimate terms and conditions, or

b) the discrimination arises directly from a religious or other ideological conviction or national or ethnic origin fundamentally determining the nature of the organization, and it is proportional and justified by the nature of the employment activity or the conditions of its pursuit.

Article 23

An act, a government decree based on an act or collective contract may order an obligation for positive discrimination for a specified group of employees in respect of the employment relationship or other relationship aimed at employment.

Social security and health care

Article 24

The principle of equal treatment shall be enforced in respect of insurance systems, particularly in the course of claiming benefits

a) financed from the social security systems, and

b) providing social, or financial and in-kind child protection or personal care.

Article 25

(1) The principle of equal treatment shall be enforced in respect of health care, particularly in respect of the provision of health services, including

a) participation in preventive programs and medical check-ups,

b) preventive medical care,

c) use of premises for residence,

d) the satisfaction of dietary and other needs.

(2) Pursuant to or authorized by the law and based on health, disability or a characteristic defined in Article 8, a government decree may grant additional benefits to specified groups of society within the framework of the social and health care system, in accordance with the provisions herein.

Housing

Article 26

(1) It is a particular violation of the principle of equal treatment when any persons because of their characteristics defined in Article 8 are

a) inflicted with direct or indirect negative discrimination in respect of the granting of housing subsidies, benefits, interest subsidies by the state or a municipality,

b) put in a disadvantageous position in determining the conditions of sale or leasing of state-owned or municipal housing and plots.

(2) The issue of occupancy and other building permits by the relevant authorities cannot be denied, or tied to any conditions, based directly or indirectly on characteristics defined Article 8.

(3) The conditions of access to housing shall not be determined with the aim of artificially separating any particular groups based on characteristics defined in Article 8 to any settlement or part thereof, rather than by the group’s voluntary decision.

Education and training

Article 27

(1) The principle of equal treatment extends to any care, education and training

a) carried out in accordance with requirements approved or ordered by the State, or

b) whose organization is supported by the State

ba) by direct normative budgetary subsidy, or

bb) indirectly, especially by releasing or clearing taxes or by tax credit (hereinafter collectively: education).

(2) The principle of equal treatment shall be enforced in relation to education defined in Paragraph (1), particularly in

a) determining the conditions of joining education and assessing applications,

b) defining and setting the requirements for education,

c) performance evaluation,

d) providing and using services related to education,

e) access to benefits related to education,

f) accommodation and supplement in dormitories,

g) issuing certificates and diplomas obtainable in education,

h) access to vocational guidance, and

i) the termination of the relationship related to participation in education.

(3) The principle of equal treatment is especially violated if a person or group is

a) unlawfully segregated in an educational institution, or in a division, class or group within such an educational institution,

b) limited to a care or educational system, or a care or educational system or institution is created or maintained whose standards do not reach accepted professional requirements or do not meet professional rules, and thus do not ensure a reasonably expectable opportunity to prepare for state exams.

(4) Educational institutions shall not have groups pursuing extracurricular activities, pupil or student societies and other organizations of pupils, students or parents whose objective is to discredit, stigmatize or exclude individuals or groups.

Article 28

(1) If the education is only organized for students of one sex, it does not violate the principle of equal treatment, provided that participation in such an education is voluntary, and will not result in any disadvantages for the participants.

(2) The principle of equal treatment is not violated if,

a) in elementary and higher education, at the initiation and by the voluntary choice of the parents,

b) at college or university by the students’ voluntary participation,

education based on religious or other ideological conviction, or education for ethnic or other minorities is organized whose objective or program justifies the creation of segregated classes or groups; provided that this does not result in any disadvantage for those participating in such an education, and the education complies with the requirements approved, laid down and subsidized by the State.

(3) Any legal act may divert from Article 27 (2) a) in respect of educational institutions serving the protection of linguistic or cultural identity or the purposes of a church, ethnic or other minority.

Article 29

A government decree created pursuant to the law or the authorization thereof may order an obligation to give positive discrimination to a specified group of participants in education within or outside the school system in respect of education or training.

Sale of goods and use of services

Article 30

(1) It is considered a particular violation of the principle of equal treatment if at premises open to customers, particularly in catering, commercial, cultural and entertainment establishments, and based on a characteristic defined in Article 8,

a) the provision of services or sale of goods is denied or neglected,

b) the services provided and goods sold are not of the same quality as those normally available at the particular premises,

c) putting up a notice or sign implying that a certain individual or individuals are excluded from the provision of services or sale of goods at the premises.

(2) Entry into premises established for a group defined by characteristics defined in Article 8 for the purposes of preserving traditions or maintaining cultural or self identity and open to the immediate public may be limited or subject to membership or specific conditions.

(3) The limitation in accordance with paragraph (2) must be obvious from the name of the establishment and the circumstances of the use of the service; and this shall not be done in a manner humiliating and defamatory to individuals who do not belong to the particular group, and furthermore it must not provide an opportunity for abusing the law.

CHAPTER IV

REPUBLICAN EQUAL OPPORTUNITIES PROGRAM

Article 31

(1) The objective of the Republican Equal Opportunities Program (hereinafter: Program) is to prevent negative discrimination and to promote the equal opportunities of certain specific social groups in all aspects of life.

(2) The Program includes all governmental measures serving the objective defined in Paragraph (1).

(3) Funds from the central budget for the Program are ensured by the Act on the Budget of the Republic of Hungary.

Article 32

(1) The Parliament approves the Program every two years at the recommendation of the Government, after it has been discussed with the relevant social and interest representation organizations and the organizations representing employers’ and employees’ interests, based on the proposal of the Minister responsible for the co-ordination of equal opportunities issues.

(2) The Program forms an annex to the Parliament’s resolution.

Article 33

(1) The Program analyses the situation of the relevant groups of society and determines the objectives promoting equal opportunities.

(2) The Program includes

a) the measures required for changing society’s approach in a positive direction,

b) the informative measures concerning the possibilities of acting against violations of the law,

c) the measures required for improving the situation of disadvantageous groups and reducing the discrepancies in the labor market,

d) the measures required for improving the participation of disadvantageous groups at all levels of decision-making,

e) the measures by the State increasing the interest of employers in the effectiveness of the Program,

f) the measures required to promote the access of disadvantageous groups to services connected with the informational society,

g) the measures required for increasing the participation of disadvantageous groups in elementary and higher education, and

h) the legislative tasks required for achieving the proposed objectives.

Article 34

The Government shall report to the Parliament on the delivery of the Program within a year following the relevant period.

Article 35

In harmony with the Program local authorities can adopt local equal opportunities Program, which analyses the state of the disadvantageous groups living in the settlement and defines the purposes of promoting the equal opportunities of these groups. The equal opportunities Program of the local authority comprises especially the purposes connected with the duties performed by the local authority and with the local public affairs, the demand of sources and the time of realization.