Horizontal Rule

Will the Groom Adopt the Bride's Unwanted Child? The Race Equality Directive, Hungary and its Roma

10 May 2003

Lilla Farkas1

Introduction

The adoption of Directive 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial and ethnic origin" (Race Equality Directive)2 is one of numerous steps the European Union has taken to deliver the political commitment embodied in Article 13 of the Treaty of the European Community (TEC).3 Arguably, the road the Union has embarked upon will lead to constitutionalisation, resulting in its transformation from an entity based primarily on the "common market" economic rationale into the entity portrayed in the European Charter of Fundamental Rights as being "founded on the indivisible, universal values of human dignity, freedom, equality and solidarity."4

Though long applied in only a handful of areas5 - economic policy, gender equality and nationality - the principle of non-discrimination has existed since the foundation of the European Community. The European Court of Justice has also identified non-discrimination as a guiding principle in its decisions on Community law.

The Race Equality Directive crucially differs from the earlier legislation in the field of gender discrimination in that its effects reach far beyond the traditional scope of Community legislation, i.e. employment. The Race Equality Directive should be transposed into Member States' national laws by July 2003, and the deadline to complete reporting under the first cycle is July 19, 2005. Transposition into Hungarian law should finish by the date of Hungary's accession to the European Union, slated for May 1, 2004. In November 2000, under Article 13 TEC, the European Council adopted Directive 2000/78/EC "establishing a general framework for equal treatment in employment and occupation" (Employment Directive). Finally, in September 2002, Directive 2002/73/EC "on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions" increased the level of protection against discrimination based on sex.

As a result of the above-mentioned directives, the Community law that candidate countries are now required to comply with when acceding to the Union is notably different from that which existed when negotiations about their accession began. This also applies to Hungary, which for mainly geopolitical reasons has a relatively well-developed legal system of minority protection.6 Nevertheless, by Community law standards, Hungarian law at present fails to ensure a comprehensive and effective system for protection from racial discrimination, despite various efforts and proposals made to rectify the situation. Significantly, Hungarian law does not ensure protection from racial discrimination in housing and social protection, or from victimisation and harassment that does not entail violence. It has also thus far failed to provide a statutory definition of direct discrimination; the reversal of the burden of proof7 and the protection from indirect discrimination apply only to the field of employment.8 Furthermore, agency enforcement of anti-discrimination law falls short of meeting the criteria spelled out in the Race Equality Directive.

With these conditions in mind, this paper begins with a comparison of the political and theoretical framework of Community anti-discrimination legislation with the principles underpinning relevant Hungarian law. It discusses the existing domestic anti-discrimination law, and analyses it in the light of the provisions of the Race Equality Directive. This examination is supported by examples taken from Member States that have implemented equal opportunity legislation for some time, i.e. the Netherlands and the United Kingdom. With reference to the first draft of the Hungarian Concept of a Bill on equal treatment and opportunities, this paper assesses the existing models of legislative amendments to be put in place in order to ensure the compliance of Hungarian law with Community legislation.9

Different Realities

Under Hungarian law, everyone has the right to state protection from discrimination based on racial and ethnic origin. However, the level of minority protection is not the same for all. Hungary recognises 13 national and ethnic minorities, including Roma.10 Refugees, immigrants, stateless persons and foreign citizens settled in Hungary have no rights under the 1993 Minorities Act but otherwise enjoy full legal protection.

After World War II, many Western European states attracted millions of immigrants to work in jobs that their own citizens were not willing to take, mainly due to low wages and poor working conditions. Perhaps against the expectations of these states, and despite various legal limitations imposed on the right to citizenship, many of the immigrants settled permanently. Community law did not contain provisions to fight discrimination against them. As Fredman argues, this influx of immigrants was in fact "functional to the project of creating a common market [with] a pool of cheap labour."11 Nowadays, however, "unemployment among communities of different racial and ethnic origins varies by a factor of up to two to three times the average for the labour market as a whole."12 Significantly, the Race Equality Directive does not extend to protect non-EU nationals and exempts immigration from its scope.13

The Iron Curtain left Hungary with only a small group of migrants. In a predominantly white society, with strict immigration regulations and with a language spoken by only approximately 15 million people, foreigners may find it difficult to settle, let alone nationalise. Thus, from an EU perspective, illegal migration through Hungary to Western Europe is of greater concern than the presence of migrants within the country.14 On the other hand, Hungary has a sizeable indigenous ethnic minority - the Romani community, comprising approximately 4.2% of its population,15 which "constitutes the largest 'visible minority' and is the most frequent target of discrimination in both the public and the private sector."16 Notably, Roma clearly come under the Race Equality Directive's scope.

Under communism, Hungarians had an obligation to work. According to independent research, in 1971 overall employment was 87.7%, compared to an employment rate of 85.2% for Romani men, though mainly as unskilled labourers.17 The figure for Romani men had fallen to 26.2% by 1994, whereas the overall employment rate stood at 63.4%.18 Conspicuously, average official figures for unemployment have remained at around 10% since 1990.19 The failure of the Hungarian state to take measures to rectify this situation is inexplicable and of obvious concern for the EU, for which a high level of employment is a primary goal. Discrimination against Roma in employment is compounded by discrimination in education, housing and social protection,20 all of which are issues the Race Equality Directive addresses.

Though discrimination against Roma has been a constant cause for concern in the European Commission's annual reports on candidate countries, it has not prevented Hungary from being found in compliance with the political criteria for accession.21 Still, analysis of the situation of Roma is painfully absent. It is submitted that unlike the situation in EU member states, an interface between racial discrimination and immigration is lacking from Hungarian domestic politics. Time will tell whether or not this will impact on the EU's post-accession policy and debate on racial equality with respect to Hungary. It is noteworthy that Hungarian politicians partaking in the work of the Convention on the future of the EU have reportedly already proposed that a committee on national and ethnic minorities be established and that the institutional representation of Roma within the EU be provided for.22

Conceptual Framework

Whether enthusiastic in their support or not, commentators share the view that adoption of the Race Equality Directive represents a unique step in Community law making. As the principle of equality may build on various conceptual foundations, it is important to identify which model the Directive employs. To understand how it can be implemented in Hungarian law makes such an analysis all the more necessary. This section discusses how commentators see the conceptual framework of the Directive, and juxtaposes this framework with the notion of equality under Hungarian domestic law, and under the relevant case law of the Hungarian Constitutional Court.

The Race Equality Directive

The Directive addresses both direct and indirect discrimination, defined in Article 2. To establish the existence of either form, a comparator is needed. While in cases of direct discrimination one person is compared to another person, in cases of indirect discrimination it is groups of persons whose treatment is compared to the treatment accorded to other groups of persons. In addition, when establishing a case of indirect discrimination, proof of potential particular disadvantage may suffice. Indirect discrimination is established "unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary." As Barnard and Hepple point out,23 this formulation was included in the final text with a view to ensuring that courts ruling in cases of indirect discrimination would not necessarily require statistics, but would aim at examining the provision, criterion or practice in question on the basis of general knowledge that takes social facts into account. Under the Directive, harassment and/or instruction to discriminate shall also be deemed to be discrimination.

Under Article 3, the Directive applies to "all persons as regards both the public and private sectors, including public bodies." The term persons covers individuals as well as legal entities. Regardless of the number of workers, no employer - whether public or private - is exempt from its reach. With a focus on employment issues, the Directive covers areas that correlate with social and economic rights. Indeed, it does not appear to apply to traditional civil and political rights, such as equality before the law in criminal cases or the right to vote. Furthermore, discrimination based on nationality and immigration rules applying to non-EU nationals are not covered under the Directive.

Chalmers criticises the Directive for making space for an essentialist interpretation of the concept of discrimination "premised upon the classification of a racial group and the ascribing of attributes to that group."24 According to him, in line with the "old liberal model", the Directive demonstrates strong ties to the principle of citizenship and in turn to the institutions of the nation state. Consequently, the principle of non-discrimination has been formulated under Article 3(2) with the dichotomy of the inclusion of nationals and the exclusion of non-nationals. In Chalmer's view, the "meritocratic criteria" of the Directive are ethnocentric and fail to address the "socio-economic disadvantage" of certain groups. On the other hand, Chalmers identifies various provisions of the Directive as characteristic of the multicultural model, such as Article 6(1), which leave room for more favourable protection to be adopted at national level than that set down in the Directive.

Barnard and Hepple find that the EU adopted the equality-of-opportunity model. But equality of opportunity is, according to some, a concept with "controversial content"25 as it is divided between procedural (formal) and substantive aspects. The former, according to Abram,26 aims at the "elimination of discriminatory barriers that denied the individual the opportunity to exercise his franchise effectively." The procedural approach, however, does not take into account how social disadvantage may hamper access to an equal starting point. The substantive approach argues that only positive action can remedy these disadvantages. As Fredman argues, result-oriented concepts of substantive equality27 do not question the notion of individual dignity and worth expressed in the formal approach, but in many ways aim at dismantling the limitations inherent therein.28 This latter understanding of substantive equality informs Article 5 of the Race Equality Directive, which allows for "specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin." The aim of these measures is in fact result-oriented, and, if taken, they must strive to "ensure full equality in practice." As a consequence of political consensus,29 the Directive leaves it to Member States to maintain or adopt such measures.

Hungary

Hungary has ratified a number of international treaties relevant to the prohibition of racial discrimination, including the UN Convention on the Elimination of All Forms of Racial Discrimination. Under Article 7(1) of the Constitution, the Hungarian legal system "accepts the generally recognised principles of international law, and shall harmonise the country's domestic law with the obligations assumed under international law." However, Hungarian law lacks both comprehensive anti-discrimination legislation and a clear definition of direct discrimination. Even more relevant to our purposes is that in the fields of housing, social advantage and social protection (including state and private pension schemes), and in promotion and support for small and medium-size enterprises, not even a declarative prohibition of discrimination exists.30

In domestic law, discrimination is prohibited under Article 70/A of the Constitution, which provides that

  1. The Republic of Hungary shall ensure human and civil rights for everyone within its territory without discrimination of any kind, whether based upon race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other grounds;
  2. Any discrimination falling under Paragraph (1) shall be severely punished by law;
  3. With, inter alia, measures aimed at the elimination of the inequalities of opportunity, the Republic of Hungary assists in the realisation of legal equality.31

The non-discrimination principle's scope is general, i.e. in theory it covers all walks of life and is not limited to e.g. employment and education. Paragraph 3 appears to define equality in a manner that corresponds perfectly with equality of opportunity in its substantive sense. The wording leaves no room to debate that, according to the re-drafters of the Constitution, equality before the law may only be realised through various measures, including those aimed at the elimination of the inequalities of opportunity, i.e. positive action. Although the constitutional anti-discrimination clause stipulates the state as the guarantor of civil and human rights to everyone without discrimination based on race, it is not formulated in a manner that would prevent it from having a horizontal effect.

1. Constitutional Jurisprudence
The first Constitutional Court32 was relatively active in fleshing out an interpretation of the constitutional anti-discrimination clause, an interpretation that echoes what has already been said about the Race Equality Directive's theoretical underpinnings.

In his analysis of the period ending in 1995, Tamás Győrfi argues that the prohibition of discrimination has a special status in Hungarian constitutional law both in quantitative (formal) and qualitative (substantive) terms.33 The Court first interpreted equality in 1990, and found that it was linked to the right to human dignity, in that the law must treat all persons as equals in dignity.34 The Court found that if a social goal or constitutional right could only be realised through positive discrimination, this would not be unconstitutional.35 The abstract meaning of equal treatment and the fundamental rights listed in the Constitution establish the limits of positive action. In a subsequent decision, the Constitutional Court restricted the grounds of positive discrimination by defining social justice as its only permissible justification.36

To ensure that equality is a substantive right and not only a governing principle of procedural justice, state action is necessary to extend direct application of the constitutional non-discrimination principle to all fields of law. Therefore, in 2000, the Constitutional Court was called on to examine whether or not the lack of a single piece of law prohibiting discrimination was constitutional.37 It found that, "the Constitution and closely relating legal norms contain provisions that - if taken together - add up to the comprehensive regulation of the prohibition of discrimination." The Constitutional Court acknowledged that the "scattered regulation of discrimination may lack provisions pertaining to certain forms of discrimination," and also that it could not be argued that no "further room to legislate with a view to realising the constitutional prohibition of discrimination" existed. It nonetheless concluded that "effective legal regulations operate as a multifaceted defence system to eliminate discrimination, and thus the Parliament has in this manner complied with its legislative obligation."38 The decision was criticised for being procedurally flawed and ambiguously reasoned.39 Gábor Halmai points at the text of the Constitution40 to argue that the constitutional non-discrimination clause is directly applicable, and that ordinary courts should consequently invoke it in their decisions.41 There has been, nonetheless, a widespread failure of courts to do so.42 However, as this is not a matter of legal principle but of practice, it can far more easily be rectified.

In decision No. 45/2000, the Constitutional Court made its closest attempt so far at clarifying its notion of discrimination. It held that "[e]stablishing discrimination necessarily requires some kind of comparison, since discrimination implies the differential treatment of persons, things or phenomena which from a certain well defined perspective can be regarded as equal. This differential treatment has to be visible in the external world. Legally meaningful discrimination can only be defined with reference to some right or duty."

Krizsán warns that this definition may narrow the Constitutional Court's previous interpretation of the prohibition of discrimination.43 She argues that the requirement that disparate treatment must occur for discrimination to be found may entail that disparate impact is insufficient for such a finding. Clearly, the Constitutional Court has been rather superficial when considering the definition of discrimination. However, given that domestic labour law already provides protection from indirect discrimination (Article 5(2) Hungarian Labour Code), it is difficult to see how, in a future decision, the Constitutional Court could interpret the prohibition of discrimination so as not to cover cases where disparate impact is concerned. Furthermore, the Constitutional Court would have to reconsider its definition of discrimination when called on to examine why, in a fragmented system of protection, indirect discrimination is not addressed in all fields of law.

The Constitutional Court's formulation that "persons [?] who from a certain well defined perspective can be regarded as equal" is also troubling as it reflects an outmoded notion of discrimination and one not reflecting its definition in the Race Equality Directive. What is the use of finding a comparator that is equal with a person in only certain perspectives but that fundamentally differs in others? If the comparison is to work, equality from a "certain well defined perspective" may only mean equality in human dignity, the principle that formed the foundation of the Constitutional Court's interpretation of equality. Finally, the proposition that "differential treatment has to be visible in the external world" raises the question of whether potential differential treatment would qualify as discrimination, as it does under the Race Equality Directive.

2. Fitting Together Concepts
Although there are basic similarities in the theoretical contexts underpinning the Race Equality Directive and the Hungarian Constitutional Court's relevant jurisprudence, there are also significant differences. Both appear to go beyond the formal concept of equality and employ the concept of substantive equality. Under the Directive, positive action is allowed in order to "prevent or compensate for disadvantages linked to racial or ethnic origin", while under Hungarian law, its justification is the "elimination of the inequalities of opportunity". The former appears to employ more re-distributive language ("compensate") than the latter. In addition, whereas positive action under the Directive may occur "with a view to ensuring full equality in practice", the corresponding constitutional provision seems weaker in that its final objective is more the formal "realisation of legal equality". Then again, under the Constitutional Court's interpretation, positive action can be justified if it seeks to deliver social justice or a community goal - terms that carry a meaning beyond the mere elimination of the inequalities of opportunity. The endorsement of positive action under the Directive is broad and sufficiently strong as it is the result of political consensus. Furthermore, contrary to the formulation of positive action in the Equal Treatment Directive,44 the Race Equality Directive declares that positive action "cannot be described as [a] derogation from the principle of equal treatment in a formal sense."45

The Hungarian Constitution's non-discrimination clause contains a substantive right, which, if properly implemented, should provide protection to persons in all walks of life from discrimination by public bodies as well as by private individuals. In Community law, despite the fundamental rights element under Article 13, non-discrimination on the grounds of racial or ethnic origin is still primarily dealt with from an economic rationale. As Recital 9 of the Race Equality Directive observes, racial discrimination "may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and [?] economic and social cohesion [...]" Whether this focus will have a restrictive effect on interpretations of the Directive's scope remains to be seen.

Implementing the Race Equality Directive

Effect of the Directives
At the Community level, the bulk of equality law exists in the form of directives. In this sense, legislation addressing racial discrimination follows the main pattern. Under Article 249 of the TEC, "a directive shall be binding as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and method." Directives do not impose obligations on private persons. They are addressed to Member States of the EU only, i.e. they have vertical direct effect.46 Directives have vertical direct effect when they are unconditional and sufficiently precise and when Member States have failed to implement them within the time limit.47

In relation to litigation between private individuals/entities directives have "indirect effect". Member States and particularly domestic courts are obliged to do everything possible to achieve the result contained in the directive.48 Member States in an action for damages in the domestic courts must make good loss and damage caused to individuals through breach of Community law, particularly in instances where a non-directly effective part of a directive is concerned. 49 Three conditions must be met in order to trigger state liability for damages. The result, as required by the directive, must include the conferring of rights on individuals. The breach must be sufficiently serious and there must be a causal link between the state's breach of obligation and the damage suffered by the individual.50

The Race Equality Directive appears to contain a number of provisions that are unconditional and sufficiently precise to have direct effect. Direct and indirect discrimination and harassment are defined in a manner that conforms to the definition of directly effective provisions. Thus, when examining cases alleging discrimination, domestic authorities shall proceed along the lines of these definitions. Other provisions which appear to have a direct effect are the individual right to legal standing in relevant courts and/or the administrative procedures of relevant associations and organisations51 as well as the provision on the reversed burden of proof, in judicial as well as administrative proceedings.52

Given that under Hungarian law only indirect discrimination is defined, it seems appropriate to examine whether this domestic definition complies with the one under the Race Equality Directive. Under Article 2(b) of the Directive,

Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Under Article 5(2) of the Hungarian Labour Code,

Indirect discrimination shall be taken to occur if the employees concerned may - on the basis of the characteristics enlisted under Paragraph (1)53 - be regarded as a mostly unified group and the measure, instruction or condition related to the employment relationship and formally setting the same requirements for everyone or guaranteeing the same rights to everyone is disproportionately detrimental to them, unless it is justifiable with appropriate, necessary and objective reasons.

Racial and ethnic origin are suspect under domestic law as well as under the Directive. Hungarian domestic legislation relates indirect discrimination to groups, while the Directive relates it to persons. The Hungarian provision requires the racial or ethnic group to be "a mostly unified" one. Whether membership in this group stems from self-identification remains to be tested in litigation. The term "apparently neutral" in the Directive corresponds to what domestic law describes as "formality". The effect of measures, etc. must be "disproportionately detrimental" under the Labour Code, but put persons potentially at "particular disadvantage" in the Directive. The latter suggests a much broader and less statistical test. Whereas in the Directive the actual disadvantage does not need to materialise for a finding of indirect discrimination, under Hungarian law disproportionate detriment must exist prior to a finding. Finally, exception under the Directive is allowed when it is "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary," whereas under Hungarian domestic law it must be "justifiable with appropriate, necessary and objective reasons." The definitions of lawful exceptions seem to overlap. It is, however, puzzling why the Hungarian legislation fails to allow an exception when "objectively justified by a legitimate aim". It thus appears that even this recent piece of legislation should be amended in order to comply with the Directive's definition of indirect discrimination.

Positive Action

Although Article 5 of the Race Equality Directive does permit positive action programmes, it does not impose a duty on Member States to maintain or adopt such programmes.54 Under the constitutional anti-discrimination provision, Hungary must take specific measures to eliminate existing inequalities and, with accession in mind, it is practical to choose a method that delivers these measures in compliance with the European Court of Justice (ECJ) case law. Furthermore, under Article 5(6) of the Labour Code,55 an obligation to give priority to a specific group of employees may be prescribed in employment-related regulations. This appears to provide room for positive action in employment. However, under the Race Directive, positive action can also be taken in other fields, such as education and housing.

In Hungary positive action is frequently used as a "dirty word". Positive action programmes do not exist, but certain social policy measures56 to diminish the inequality of opportunities facing the Romani community have recently been adopted. However, funding for these policy measures has been scarce and spent with little control.57

Although employed in both international and domestic law, the concept of positive action lacks a generally accepted legal definition.58 The ECJ has drawn boundaries for national positive action programmes. In Kalanke59 a regulation of the city of Bremen, Germany, was challenged on the grounds that, in the case of equally qualified candidates, it provided priority for a woman over a man, given that women were under-represented in the particular grade. The ECJ interpreted Article 2(4) of the Equal Treatment Directive as not allowing this "tie-break" policy. Following Kalanke, the Commission issued a Communication60 on the interpretation of the judgement, as part of its struggle to keep the doors open for positive action. Duly, in Marshall,61 the ECJ upheld another policy, differing from Kalanke in its "savings clause", according to which exceptions from giving priority to female candidates are allowed if "reasons specific to another candidate predominate." In Badeck,62 a more sophisticated and further-reaching plan of the German State of Hessen, which sought to remedy the under-representation of women in public offices, was at issue. The ECJ held that, under the circumstances, a policy that did not automatically and unconditionally give priority to women when women and men were equally qualified, and that ensured that the candidates were the subject of an objective assessment which took account of the specific personal situations of the candidates, would be compatible with Community law. Badeck signalled the victory of the flexible quota system in Europe. In Abrahamsson,63 the ECJ struck down a Swedish national rule that automatically gave priority to a person of the under-represented sex who had adequate qualifications, which were, however, inferior in minor respects in comparison with the other candidate. This judgement once again indicated that the ECJ's "support for substantive equality was subordinate to the primacy of the individual".64

When comparing the ECJ's case law on positive action to that developed by the US Supreme Court regarding affirmative action, Fredman states that the ECJ has "found it difficult to generate coherent and predictable principles."65 Significantly, litigation on positive action in Europe has been related to public sector employment.

In comparison to the German regulations on positive action, the situation under UK domestic legislation66 has been rather different. Paralleling measures in the field of gender,67 under the Race Relations Act (RRA), positive action has been permitted on the basis of racial or ethnic origin. Private sector employers can take positive action of a limited nature, i.e. by encouraging under-represented groups to take up employment and by affording access to training. Although research in 199968 revealed that these provisions were out of date or little used, they were found to have been previously utilised, mainly in the public sector.69 When implementing the Race Equality Directive, the UK government does not propose amending the existing provisions of the RRA, and will not permit "positive discrimination".70 However, as McColgan points out, the distinction between the UK government's "goals and timetables" and the US policy it is based upon, whereby affirmative action is implemented through government contracts, is "far less clear-cut".71 If the targets for women and ethnic minority candidates in top civil service posts are to be achieved, it could only be done in a manner that "would qualify as 'tie-break' positive, or even 'reverse', discrimination."

Positive action in the form of a flexible quota or a tie-break system is justified under Community law concerning gender discrimination. It is clear that positive action in the field of racial discrimination shall employ the same form of specific measures but that positive action can be adopted without Member States having to derogate from the general principle of non-discrimination. Further, the example of the UK shows that in practice, positive action can function.72

To a certain extent, though rather ambiguously, Hungary has been implementing positive action programmes for Roma in education, on the basis of ethnic quotas, and in housing, in the form of the Romani component of the national housing programme 2001.73 Whether these initiatives would pass the ECJ's test however seems unlikely. It is argued that these are social policy measures going beyond those litigated in the EU to date. They are different in character from positive action as it is currently understood in Community law.

The UN Special Rapporteur on affirmative action emphasises that "affirmative action programmes do not substitute for anti-poverty programmes."74 By the same token, anti-poverty programmes, though disguised as being specifically tailored for a racial minority, do not substitute for affirmative action programmes.

Enforcement

McCrudden distinguishes three models of enforcing anti-discrimination law: The individual justice model, the group justice model and the equality of participation model.75 The following paragraphs identify, according to his classification, areas in which the existing institutional and remedial approach under Hungarian law requires amendment to comply with the Race Equality Directive's enforcement model. To augment the analysis, a short overview of enforcement in the UK and the Netherlands is provided.

The main focus of the individual justice model, in McCrudden's account, is on "eliminating from decisions illegitimate considerations" based, inter alia, on race and ethnicity. It is based on merit and achievement and is "markedly individualistic". This model proceeds from a twin focus on the intention of the perpetrator and on the victim's sense of grievance. Judgement does not rely on complex socio-economic facts. Under the individual justice model, three main elements can be identified: a criminal justice model, a civil justice model, and an enforcement agency model. In the first, complaints of discrimination are treated under criminal law, while the second perceives them as matters of civil law. Those in favour of the enforcement agency model emphasise the advantages of its investigatory powers in assisting victims of discrimination.

The group justice model, according to McCrudden, concentrates on the outcomes of the decision making process from a re-distributive angle. Thus, its main preoccupation is with the "relative position of groups and classes", which requires law to conceptualise discrimination as including indirect discrimination. Under this model, group-based remedies are sought, including affirmative/positive action. This approach signals a shift from negative to positive duties. The focus on groups has, in some countries, led to giving standing to institutional plaintiffs "without the need for an individual victim." Significantly, an agency's investigatory powers may also serve the group justice model by unveiling systemic and institutional discrimination. In addition, the precedent that individual litigation sets may have profound effects in advancing the objectives of group justice.

The third model - equality as participation - requires that, by "involving the affected groups themselves," policies of non-discrimination be woven "into the fabric of decision making." This process envisages direct participation from all government departments and strong links with civil society. The focus of this model is therefore on pluralism and diversity.

These enforcement models are rarely implemented in their pure form. Indeed, in tackling gender discrimination, Community law has for the most part adopted the individual justice model. Nevertheless, the prohibition of indirect discrimination and the approval of positive action under the Equal Treatment Directive have peppered the model with elements of the group justice model.76 McCrudden argues that the Race Equality Directive adopts an approach that is fundamentally based on the individual justice model, regardless of several elements which are meant to overcome this model's limitations, including broader standing, reversed burden of proof and protection from victimisation.77 What weakens the individual justice model elements in the Directive is the fact that sanctions under Article 15 may include the payment of compensation (but do not necessarily include them). Finally, under Articles 11 and 12, which address social dialogue and dialogue with non-governmental organisations, equality as participation is only faintly present.

1. Enforcement in the UK
 In the UK, various legislation and enforcement agencies ensure non-discrimination on the grounds of race, sex and disability.78 In contrast to the Hungarian enforcement system's existing focus on discrimination in the public sector, prior to the Race Relations (Amendment) Act 2000,79 the private sector was the focus of enforcement in the UK. Enforcement in the UK is based mainly on the individual justice model, although the Commission on Racial Equality (CRE) does support test and sample cases whose outcome is capable of reaching beyond the individual victim of discrimination.80 In 1991, research found that the CRE was more effective in assisting complainants than any other body.81 Further, it has tried to develop alternative sources of advice and representation by involving trade unions and law centres.82 But it was also found that applicants were more successful if well represented and only when they devoted "exceptional, almost obsessive energy, and a large amount of time, to the undertaking." Legal aid is, however, not available to litigants, and although they can apply to the competent agency (Sections 44, 65 and 66 of the the Race Relations Act) for financial and other assistance, given the limited resources available, assistance cannot always be provided. The provision of full legal representation is even scarcer.83 McColgan argues that Article 7 of the Race Equality Directive might be interpreted as to require adequate funding for the CRE.84

The main form of remedy under the Race Relations Act is compensation,85 limited until 1994 to 11,000 British pounds. At present, exemplary and continuing damages cannot be awarded in race discrimination cases. Furthermore, the sums awarded in compensation are quite modest, which is liable to greatly diminish the influence of court actions on the perpetrators of discrimination. The majority of successful race discrimination cases do not result in an award of compensation.86

The CRE's advisory function and, on the other hand, its power to issue Codes of Practice (s.47), enable it to contribute to the collective method of enforcement. The CRE can engage in litigation on its own behalf or in support of individual complainants. It is within its powers to launch "formal investigations". However, a constricted judicial interpretation of the scope of such investigations have caused major controversy and have hampered the CRE's efforts in collective enforcement for over a decade.87 The results of "formal investigations" must be reported and can serve as a basis for recommendations to the Secretary of State for amendments to the law, as well as a basis for non-discrimination notices. The latter are subject to appeal (s.59). The CRE has exclusive power to take action against discriminatory advertisements, instructions to discriminate and pressure to discriminate (ss. 29-31). In cases of continued breach, it can apply for an injunction (s. 63). Non-compliance with its requests for information may result in fines (s.50).

To provide an alternative method of enforcement, the CRE has lobbied for the practice of contract compliance by central government, with the requirement that non-discrimination on the grounds of race etc., be built into contracts paid out of the central budget.88 Other, to date equally unsuccessful lobbying efforts have advocated a use of public finances in a manner that encourages equality policies among suppliers and contractors. Crucially, however, under the Race Relations (Amendment) Act, public authorities are under a statutory obligation to promote equality of opportunity on racial grounds.89 With a view to compliance with the Race Equality Directive, the government is proposing one substantial amendment to the existing system of enforcement, namely the gradual creation of a "single, statutory commission offering integrated advice, guidance and support on equality matters."90

2. The Dutch System of Enforcement
Rodrigues observes that in the Netherlands, enforcement under administrative and criminal law is less significant.91 Instead, it falls to the victims of discrimination to pursue their claims under civil law. Article 1 of the Dutch Constitution prohibits discrimination on various grounds, including race. Although this prohibition only has vertical effect, it was, nonetheless, used to interpret the general clauses of labour, tort and contract law.

In 1994, the Equal Treatment Act (ETA)92 extended the effect of the non-discrimination principle to relations between individuals. Race, as understood under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), is one of the grounds on which the ETA aims to prevent discrimination. It covers employment, broadly understood; education; and the supply of goods and services in housing, social services, health care and culture. With limited exceptions,93 the ETA applies to both the private and the public sector and provides two types of sanctions: (i) the declaration of discriminatory terms and conditions as void; and (ii) compensation under general tort law. The ETA does not reverse the burden of proof and also inadequately addresses victimisation. Group action is available under Dutch law94 and is "commonly used". Foundations and associations can mount civil actions in order to protect the interests of individuals but cannot seek monetary damages. The National Institute Against Racial Discrimination and about 40 Anti-Discrimination Bureaus help private individuals in litigation. However, recourse to the less costly and more efficient proceedings of employment agencies and the boards of various sectors of services is also substantial.

The most crucial function of the ETA-established Equal Treatment Commission (ETC) is to conduct investigations based on individual applications. It can of its own initiative also launch "formal investigations" into systematic discrimination (s. 12). Although not its statutory duty, the ETC has cautiously engaged in mediation.95 It informs complainants and their opponents, as well as the appropriate Ministers and organisations about its findings. It issues non-enforceable recommendations to perpetrators found liable for discrimination (s. 13). To balance the relative non-enforceability of its rulings, the ETC has the power to mount legal action for a finding of violation, and may issue an order to discontinue conduct contrary to the ETA (s. 15). Arguably, this power may cause the ETC, an "independent semi-judicial body," to be perceived as an "independent prosecutor."96 This might also explain why, since its establishment, the ETC has initiated court action in only one case - this against an employer who refused to provide the information requested.97

The Hungarian enforcement model is fundamentally individualistic. Remedies for discriminatory acts can be sought under the Civil Code, the Labour Code and through various administrative proceedings. Though extreme forms of racial discrimination98 are penalised, the system of sanctions is uneven. Article 76 of the Civil Code, under which racial discrimination is a violation of civil rights, and Article 84, defining the types of remedies to be sought, are the core provisions of this system. Given the wording of Article 76, any act of discrimination can theoretically be brought under its tenet. More importantly, however, it can also be perceived as the legal provision that operationalises and ensures the vertical effect of the constitutional anti-discrimination clause. Civil law remedies range from the finding of a violation in integrum restitutio to a public acknowledgement of, and compensation for, a violation. A court-imposed ban on continuing or repeating the violation is clearly also a preventative sanction.99 However promising this seems, uneven application of the provision has rendered the public interest fine - analogous to exemplary or punitive damages - a rather toothless sanction in practice.100 If a public body discriminates, it is, under Article 349, liable for pecuniary as well as non-pecuniary damages.101 Hungarian law does not allow for class action, but test and sample cases can be brought.

Since January 1, 1999, labour courts have had the competence to rule on discrimination occurring in relation to recruitment. Under Article 5(1) of the Labour Code, there shall be no racial discrimination in employment, whereas under Article 5(7), the consequences of discrimination shall be adequately remedied. The latter provision, however, goes on to say that the remedy accorded for the violation shall not imply the violation of the rights of other employees, which seems possibly to prevent courts from ordering employers to hire applicants previously rejected on the grounds of their race. This leaves compensation as the main remedy available under labour law.102 In civil and labour law cases complainants can apply to the court for pro bono representation. There are no court fees in labour law cases and only claims failing under Articles 76 and 84 of the Civil Code are subject to fees. However, these concessions have so far failed to have an impact on individual litigation. It also appears that for the majority of Roma, the mounting of a lawsuit is too great a hurdle to overcome. In addition, human rights organisations engaging in litigation on behalf of Roma have demonstrated that even when damages are awarded, they are hardly dissuasive to discrimination, given their amount and the length of the proceedings.103 Administrative authorities, such as the labour inspection, the consumer inspection and notaries, have the power to investigate and sanction - mainly with fines - employers and service providers, such as owners of pubs, shops and restaurants, who discriminate on the basis of race. Nevertheless, these authorities have been found to persistently fail to investigate complaints and to adequately sanction perpetrators.104

Just as Hungary lacks a comprehensive set of sanctions, it also falls short of having a unified regulatory agency entrusted with the range of powers envisaged under Article 13 of the Race Equality Directive. The primary body dealing with complaints of racial discrimination is the Parliamentary Commissioner for National and Ethnic Minorities ("Minority Commissioner" or "Minority Ombudsman"), who is responsible for investigating or initiating the investigation of cases involving the infringement on the rights of national or ethnic minorities,105 and for initiating general or specific measures for their remedy (Article 32(B)(2) of the Constitution). Although this provision appears to provide the Minority Commissioner with the power to investigate the conduct of private individuals, statutory regulation106 limits his power to investigating complaints raised against public authorities (broadly understood). Moreover, the Minority Commissioner may not deal with complaints filed more than one year following a decision by a public body that is not subject to appeal.107 Krizsán observes that in practice, the current Minority Commissioner "extensively uses his legislative and policy making functions" by reviewing relevant legal regulations at both the national and local levels annually and on a case-by-case basis.108 As part of the enforcement function, the Minority Commissioner conducts (on-site) investigations based on individual complaints.109 Further, the current Minority Commissioner regularly conducts ex officio investigations (on education, housing and employment discrimination), which "seem to be a relatively good substitute for class action" and also appear to demonstrate that he places "strong emphasis on the systemic aspects of racial discrimination." Significantly, however, the Minority Commissioner has no power to impose sanctions on persons who do not co-operate in an investigation.

Upon finding a violation of constitutional rights, the Minority Commissioner issues a recommendation. The authority addressed by the recommendation must respond within 30 days to the public authority concerned or its supervisory body. Should the recommendation be rejected, the Minority Commissioner may, within 15 days, (i) file a motion with the Constitutional Court;110 (ii) request that the prosecutor issue a warning;111 or (iii) propose to the competent legislative organ to amend, repeal or issue a legal instrument.112 The relevant body is required to respond within 60 days. The Minority Commissioner may initiate disciplinary proceedings and is obliged to report any crimes unveiled.113 The Minority Commissioner cannot take court action independently or in support of a complainant. This limitation seems to seriously hamper the powers of the body.114 Further, the Minority Commissioner does not have resources to fund individual litigation. The latter conditions clearly fall short of conforming to the principles relating to the functions and responsibilities of specialised bodies as envisaged by the European Commission against Racism and Intolerance (ECRI) in its relevant recommendations. According to ECRI's recommendations, specialised bodies should have the power to provide aid and assistance to victims, including legal aid, in order to secure their rights before institutions and the courts, and these bodies should also have recourse to the courts if and when necessary.115

Krizsán finds that the Minority Commissioner's Office lacks the know-how necessary for conciliation procedures and criticises the current Minority Commissioner's approach towards mediation and persuasion. She is equally critical in regard to his promotional and educational activities, recounting that by the end of 2001 the Office had issued only one Code of Practice, which related to the co-operation between minority self-governments and local councils. She finds similar inactivity relating to the promotion of positive action in employment.116

In Hungary, several bodies appear to have a mandate to investigate and impose sanctions for racial discrimination. Nevertheless, none are under a statutory obligation to promote equal treatment regardless of a person's racial or ethnic origin. Clearly, pursuant to Article 13(1) of the Race Equality Directive, this shortcoming needs to be remedied. Although national legislation that provides for the multi-body model is also able to meet the requirements of the Directive, examples from the UK and the Netherlands show that entrusting a single body with this duty provides a better guarantee of efficiency. In addition, it does not prevent other state agencies (and industrial or commercial boards) from participating in enforcement. The enforcement mechanism under Dutch law operates along the same lines, regardless of the type of discrimination. Indeed, the absence of a single agency in the UK is a major concern.

Community law now covers non-discrimination based on a wide range of grounds. Furthermore, although it does not require Member States to designate a body for the promotion of equal treatment on grounds other than race, it does require them to ensure effective enforcement and remedies.117 Consequently, it would be reasonable for Hungary to adopt the model of a single enforcement agency. Changes to the present law could come gradually, first transforming the institution of the Minority Commissioner into a single agency focused on dealing with racial discrimination. To this end, the scope of its activities should be defined so as to comply with Article 3 of the Race Equality Directive. Most significantly, the Minority Commissioner should be given powers to receive complaints against discrimination in the private sector, to promote racial monitoring, to issue Codes of Practice and to lobby for a government policy on contract compliance. Although the Directive fails to define race and ethnicity, given that it does identify the groups that are excluded from its scope (Article 3(2)), domestic provisions relating to standing before the Minority Commissioner should be revised to include all relevant racial and ethnic groups (e.g. Jews and foreigners).

Under Article 13(2) of the Directive, Hungary would have the duty to ensure that the enforcement agency has the power to (i) report and issue recommendations; (ii) conduct independent surveys; and (iii) provide independent assistance to victims of discrimination in pursuing their complaints. As we have seen, the Minority Commissioner has the competence to report, issue recommendations,118 and launch ex officio investigations. The current Minority Commissioner has already, on a few occasions, commissioned research into specific problems. Thus, the only real limitation to its power to conduct independent surveys appears to be financial. The Minority Commissioner has, however, neither the statutory power nor the necessary financial resources to assist victims in pursuing their complaints. Significantly, the Directive does not seem to require Member States to ensure that the enforcement agency itself have the power to litigate, even though it clearly does not limit the pursuit of complaints to administrative proceedings. It therefore appears that assistance could be provided through co-operation with organisations that have already or could potentially engage in anti-discrimination litigation. However, bearing Article 7 in mind, funding for such litigation must still come from the state.119

The Hungarian system of sanctions is fragmented and thus fails to cover various fields that come under the Directive. The enforcement of the non-discrimination principle is retroactive rather than preventive. However, in many respects it stands up to comparison with both UK and Dutch law. As discussed above, it is the length of proceedings (particularly judicial) and the (small) amount of potential compensation available that constitutes the greatest obstacle to sanctions being effective, proportionate and dissuasive. Given that proceedings before administrative bodies are less costly and lengthy, these bodies' reluctance to investigate and impose sanctions for acts of discrimination is also of grave concern. This is, however, an issue that a more robust agency with a duty to promote equal treatment could adequately address. Finally, the fact that domestic law at present only allows for the handling of data relating to racial and ethnic origin with the consent of the person concerned120 severely impedes the process of establishing discrimination, particularly in cases involving indirect discrimination and institutional racism.

The Concept of the Equal Treatment Bill

the Race Equality Directive as an important opportunity to change the existing domestic legislation on racial discrimination. Drawing on the Directive, by October 2, 2000, the Minority Commissioner had drafted his own bill on fighting racism and xenophobia and ensuring equal treatment.121 The bill received strong support within the Parliament's Human Rights Committee but was not supported by the right wing coalition government led by the Alliance of Young Democrats (FIDESZ), in power from 1998 until spring 2002. In 2001, several MPs submitted their own bill on equal treatment between men and women.122 This was followed by a general anti-discrimination bill advanced by Socialist MPs.123

By November 2002, the new socialist-liberal government, drawing on the previous bills by the Ministry of Justice, had prepared a new Concept of the Equal Treatment Bill (hereinafter "the Concept Paper"), and had called for input by non-governmental organisations (NGOs) prior to beginning drafting the actual text. The following analysis of the Concept Paper is based on the comments submitted by the Hungarian Helsinki Committee in collaboration with the gay legal aid group Háttér (hereinafter "the Comments").124

It is to be applauded that the Concept Paper foresees identical protection on all the grounds the Race and Employment Directives cover, and in all the fields to which the Race Equality Directive relates. This considerably extends the scope of equal treatment provisions to cases of discrimination based on sex, religion, disability and sexual orientation. It is thus regrettable that the Concept Paper seems to have forgotten about regulating housing and sidelined the issue of access to self-employment.

A major shortcoming of the Concept Paper's governing principles is its position on protection accorded in the private sphere. The Concept paper envisages a scope that would "intrude" upon the private sphere only when the respondent private actor has been established as a result of state action (e.g. registration of a private company). Though this definition of exceptions for certain private relations is rather complicated and non-practicable, one can appreciate that the main objective of this proposal is to keep deeply personal issues, such as marriage and adoption, out of legislative reach. It is, however, more troubling that in the formulation of this proposal scenarios that should by all means be regulated such as the renting and selling of houses by private individuals, have escaped scrutiny.

The Comments agree on allowing exceptions as long as they genuinely relate to the most personal affairs of an individual, e.g. the renting of one's furnished flat to an acquaintance. However, such exceptions must be further limited and defined in a more straightforward manner, such as in Article 7 of the Dutch ETA. The Dutch provision tackles these dilemmas by introducing the notion of publicly available information about goods and services. Only in cases where such information exists is the ETA applicable and equal treatment accorded.

The scope of the Concept Paper does not extend to cover internal affairs of NGOs, clubs/associations and churches. In light of growing discriminatory practices such as that of pub owners who establish associations and close their establishments to non-members (e.g. Roma), this proposition is to be strongly opposed.

The Comments emphasise the importance of a word for word transposition of the definitions provided in the Directives. Even minor changes or omissions can lead to radically different interpretation by domestic courts, e.g. the omission of either type of comparison on which a finding of discrimination can be based.125 By the same token, the explanatory memorandum must elaborate on how discrimination can be established. Reference must also be made to the fact that statistical evidence is not a must-have in establishing indirect discrimination. Definitions of an instruction to discriminate, as well as of genuine and determining occupational requirements, must also be included. Surprisingly, at present the Concept Paper also fails to include ethnic origin among the grounds of protection.

In relation to non-public actors, the Concept Paper would not extend the scope of protection to access to self-employment. Given the high level of unemployment and its direct consequence, the practices of day work and the non-voluntary establishment of private businesses among Roma, the Comments strongly oppose this limitation. The Comments stress that the majority of Roma perform work that falls outside the scope of the Labour Code. If protection is limited to employment as traditionally understood, the practical relevance of the proposed legislation for the Roma will be insignificant.

Positive action is envisaged in employment, along conditions compatible with the ECJ's case law. It remains to be seen whether action will be taken in other fields, such as education. The Concept Paper proposes that firms employing over 250 workers be obliged to draw up equal opportunity plans. Given the average size of companies operating in Hungary, this figure seems far too high.

In relation to equal opportunities in education, the Comments recall that all the relevant surveys point to the need for doing away with the minority education of Roma. Instead of reinforcing the existing system, the present legislative process could provide an adequate opportunity for amendments or indeed radical changes.

Lengthy criticism is levelled at the Concept Paper's vision of the Equal Treatment Commission (ETC), the body proposed to oversee implementation. The Comments emphasise the need for the clarification of its relationship to existing institutions, first and foremost, that of the Minority Commissioner. Through dealing with complaints relating to minority self-governance, the latter has become the guardian of minority rights that would in the future fall under the competence of the ETC. Although its activities are restricted to investigating complaints against public bodies on only one ground of protection, namely race, the Minority Commissioner's Office is in possession of unique expertise relevant to the work of the ETC. Though it seems reasonable for the Minority Commissioner to want to retain this expertise, the duplication of monitoring powers is far from desirable. However, given that the grounds of protection now include race as one among a variety of others, channelling all monitoring activities to the Minority Commissioner appears equally non-practicable.

The Comments urge drafters to choose one of two models of operation. According to certain aspects described in the Concept Paper, the first model envisages the ETC as a body having the powers of public authorities, e.g. that of imposing fines. Should the drafters go down this path, there are numerous problems to resolve. Authorities, such as the labour and consumer inspections are already entrusted with investigating complaints relating to discrimination and imposing fines. Their decisions are subject to administrative appeal and then judicial review. In other fields, such as education, health care and housing, such sector-focused sanctions and bodies do not exist. Here, the power to investigate and fine could be delegated to the ETC, but the right to administrative appeal should also be guaranteed.

In the second model, the ETC would primarily monitor implementation and issue recommendations. In cases of non-compliance, it could certainly be accorded the power to mount lawsuits and optimally fund litigation. The main concern, however, is whether or not the ETC should itself have the power to litigate. As in the issue of fines, the dilemma that arises here is whether or not to allow the ETC to investigate and then also litigate, i.e. to simultaneously take on the role of judge and prosecutor.

The Concept Paper rightly emphasises the ETC's role in promoting individual justice. Nonetheless, given Hungary's strict provisions on handling sensitive data such as one's ethnic origin and the difficulties plaintiffs face in obtaining crucial evidence straight from respondents, it seems reasonable to impose on the ETC the duty to promote group justice. This function could best be fulfilled through thematic reports, on-site investigations and testing. Furthermore, in relation to institutionalised racism, the Comments propose that the ETC be given the power to monitor and issue Codes of Practices.

The Concept Paper proposes reversing the burden of proof in court proceedings, in line with the relevant provisions of the Labour Code, which is modelled on the Burden of Proof Directive.126 It must be noted that the Race and Employment Directives, and also the Burden of Proof Directive, allow for the reversal of the burden of proof not only before courts but also before competent authorities. Indeed, it is difficult to see why establishing discrimination should be easier in court proceedings than in administrative ones.

The Comments highlight the practical shortcomings of Article 5(8) of the Labour Code. They find that its formulation is too broad, as in theory it would allow for the reversal of the burden of proof on the basis of a simple statement by the plaintiff that s/he has been discriminated against. As the example of Katalin F.,127 the only known case so far in which Article 5(8) has been invoked shows, courts are rather cautious in applying the said provision.

Instead, the Comments suggest that, similar to the Northern-Irish and English regulations, and in line with the relevant provisions of the Directives, plaintiffs be required to establish facts, such as (i) difference in treatment; (ii) disadvantage and (iii) difference in sex, race etc. On the basis of these facts, courts and competent authorities must presume that discrimination has occurred and thus reverse the burden of proof. The advantage of this formulation is that it relies on the notion of presumption, recognised in both legal theory and practice in Hungary.

In order to facilitate proceedings, the Comments propose to include in the Code on Civil Procedure testing as a particular method to establish discrimination. The Budapest-based non-governmental organisation NEKI has widely used testing in cases relating to discrimination in access to services available to the public.128 A clear legislative definition of this type of evidence would strongly improve its standing in court proceedings.

The system of sanctions the Concept Paper puts forward relies heavily on sanctions already operating in civil law. Apart from these, the Concept Paper employs fines and the institution of disciplinary proceedings. The Comments stress that sanctions must be gradual. New sanctions are also proposed, such as the ordering of maintainers of schools found in breach of equal treatment to provide private tutoring to the pupils concerned, and the power of private plaintiffs to initiate the dissolution of NGOs found in breach of equal treatment.

In light of reports by NEKI and the Minority Commissioner, the Comments urge the drafters to identify authorities other than local governments and notaries to deal with discrimination in access to services and housing. County offices of public administrations and chief county notaries are suggested to assume the functions of the former.

Finally, the Comments propose identical definitions and sanctions for petty offences though they may occur in different fields.

Conclusions

With Hungary's fast approaching accession to the European Union in mind, this paper found that the Race Equality Directive indeed holds out many promises to Hungarian Roma, the country's most sizeable and impoverished ethnic minority. It analysed the theoretical framework the EU and Hungarian law employed in relation to the principle of non-discrimination, and identified fundamental similarities that enable Community law dealing with non-discrimination to correspond with domestic regulations. However, it unveiled major discrepancies in the understanding of discrimination as depicted in the definition of direct and indirect discrimination. Alarmingly, it found that not even the recent Concept of the Equal Treatment Bill in Hungary managed to smooth these out.

As an alternative scenario, the paper explored the effect of Directives and argued that much of the Race Equality Directive's basic provisions could be given effect through litigation in domestic courts, legislative efforts notwithstanding. Given the desperate social situation of Roma, the resolution of issues related to positive action should receive renewed energy and clearer definition in the Concept and/or subsequent anti-discrimination bills. Furthermore, and perhaps as a result of the Directive's formulation, the Concept Paper itself also appears to show little awareness of the specific problems Roma face and limits itself to positive action in employment.

The Concept Paper nonetheless does signal a sharp change in attitude and is clearly based on a comprehensive and all-encompassing approach to anti-discrimination legislation. As has been argued, the adoption of such legislation is the only way forward, as well as the best strategy to ensure compliance with the Directive.

The shortcomings of the present Hungarian enforcement model were discussed and a minimum agenda for amendments necessary in view of compliance was established. Finally, through this analysis, the Concept was found to fall short of complying with certain principles and provisions enumerated in the Directive.

Legislation in the field of non-discrimination in Hungary now forms part of the socialist-liberal government's 2003 agenda for legislation. Taking Community law into account in the legislative process is a must. Taking on board the proposals and comments advanced by specialised NGOs and the Minority Commissioner and amending the Concept Paper before drafting begins is well advised. Legislation must be robust enough to avoid making the previous mistakes of doing no more than paying lip service to the cause of equality.

Endnotes: 

  1. Lilla Farkas is a private attorney affiliated with the Hungarian Helsinki Committee and the Budapest-based Legal Defence Bureau for National and Ethnic Minorities (NEKI). She has recently earned an LLM from the University of London, King's College.
  2. Directive 2000/43 EC, Official Journal of the European Communities 2000, L 180/22.
  3. Article 13 TEC reads as follows: "Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."
  4. Preamble of the European Charter of Fundamental Rights, Official Journal of the European Communities 2000, C 364/8.
  5. Bernard, N. "What Are the Purposes of EC Discrimination Law?" in Hepple, B. and Szyszczak, E. (eds.). Discrimination: The Limits of the Law, 1992.
  6. With a substantial ethnic Hungarian minority population in neighbouring countries, domestic legislation on minority rights is suspected of primarily serving a foreign policy interest.
  7. Article 5(8) of the Hungarian Labour Code provides that in relation to a dispute arising from the procedure of the employer, it falls to the employer to prove that his/her procedure had not violated the provisions relating to the prohibition of discrimination.
  8. Article 5(2) of the Hungarian Labour Code provides a definition of indirect discrimination in employment. This article, in effect since July 1, 2001, is the only statutory definition of discrimination available in Hungarian law.
  9. Az egyenlő bánásmódról és az esélyegyenlőségről szóló törvény koncepciója, Els ő tervezet, November 2002, available at http://www.im.hu.
  10. Under Article 61 of Act No. 77 of 1993 on the rights of national and ethnic minorities these minorities are defined as follows: Armenian, Bulgarian, Croatian, German, Greek, Polish, Roma, Romanian, Ruthenian, Serb, Slovakian, Slovenian and Ukrainian. These groups are entitled to limited self-governance, mainly in the field of culture.
  11. Fredman, S. "Equality: A New Generation?". International Law Journal, Vol. 30 No 2, June 2001.
  12. Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(1999) 566, 25 November 1999. It is noted that evidence is not available for all Member States, as some collect data only on the basis of nationality and not racial or ethnic origin.
  13. Article 3(2) of the Race Equality Directive stipulates: "This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned."
  14. Shutter, S. and A. Niaz. Asylum, Changing Policy and Practice in the UK, EU and Selected Countries. London: Justice, 2002, pp.105-111.
  15. Kertesi, G. and G. Kézdi. "A cigány népesség Magyarországon, Dokumentáció és Adattár". Budapest: Socio-typo, 1998.
  16. Kádár, A., L. Farkas, and M. Pardavi. (Hungarian Helsinki Committee). Legal Analysis of National and EU Anti-Discrimination Legislation: A Comparison of the EU Racial Equality Directive and Protocol No 12 with Anti-Discrimination Legislation in Hungary. Budapest: European Roma Rights Center, Interights and Migration Policy Group, September 2001.
  17. Kemény, I. and G. Havas. Beszámoló a magyarországi cigányok helyzetével foglalkozó, 1971-ben végzett kutatásról. Budapest: MTA Szociológiai Kutató Intézete, 1976.
  18. Havas, G., I. Kemény, and G. Kertesi. Beszámoló a magyarországi cigány (roma) népesség helyzetével foglalkozó, 1993 októbere és 1994 februárja között végzett kutatásról. Budapest: MTA Szociológiai Kutató Intézete, 1994.
  19. For figures see Hungarian Central Statistical Office, at: www.ksh.hu. The 1999 country report on Hungary of the European Commission against Racism and Intolerance (ECRI) makes the same point. See CRI (2000)5, Second Report on Hungary, Adopted on 18 June 1999 made public on 21 March 2000, p. 13, at: Country by Country Approach: Hungary.
  20. Kádár, A., L. Farkas, and M. Pardavi. Chapter on Hungary in Monitoring the EU Accession Process: Minority Protection. Budapest: Open Society Institute, 2001, at http://www.eumap.org.
  21. For the European Commission's reports on Hungary's progress towards accession, see http://www.eudelegation.hu.
  22. "Magyar konventjavaslat a kisebbségi bizottságra", Népszabadság, 28 February 2003.
  23. Barnard, C. and Hepple, B. "Substantive Equality". In Cambridge Law Journal, Vol. 59, November 2000, pp. 573-574.
  24. Chalmers, D. "The Mistakes of the Good European?". In Fredman, S. and P. Alston (eds.). Discrimination and Human Rights: The Case of Racism. Oxford University Press, 2001, pp. 193-249.
  25. For example, McCrudden, C. (ed.). Anti-Discrimination Law. Dartmouth: The International Library of Essays in Law and Legal Theory, 1991, Introduction.
  26. Abram, M.B. "Affirmative Action: Fair Shakers and Social Engineers". In Harvard Law Review, Vol. 99 (1986).
  27. Fredman identifies four concepts of substantive equality. Equality of results has a focus on redistribution allowing the most wide-reaching measures of positive discrimination. The equality of opportunities is aimed at equalising the starting point. It can be interpreted from a procedural view or from a substantive approach requiring positive action. Equality as an auxiliary to substantive rights "confines equality to a subsidiary role and applies to state action only." Finally, "a broad value driven approach" equally emphasises individual dignity and worth and fair participation in society. See Fredman, S. "A Critical Review of the Concept of Equality in UK Anti-Discrimination Law". In Independent Review of the Enforcement of UK Anti-Discrimination Legislation, Working Paper No. 3, 1999, paras. 3.7-3.19.
  28. Fredman, S. "Equality: A New Generation?". In International Law Review, Vol. 30, No 2, June 2001.
  29. Barnard and Hepple, p. 577.
  30. Chambers of commerce, industry and agriculture, as well as law and medical associations are not covered by sectoral bans on discrimination.
  31. The official English translation (to be found at e.g. http://www.mkab.hu) fails to reflect the correct meaning of the original text. The translation here is the author's.
  32. Prior to 1989, there was no Constitutional Court in Hungary.
  33. Until the first half of 1995, the greatest number of petitions submitted to the Hungarian Constitutional Court related to the prohibition of discrimination and similarly, the greatest number of judgements finding that situations were unconstitutional concerned this principle. See, Gy?rfi, T. A diszkrimináció tilalma: egy különleges státuszú jog. In Jogtudományi Közlöny, Budapest, July-August 1996, p. 275.
  34. Constitutional Court Decision No. 9/1990, available at: http://www.mkab.hu. In Magyar Közlöny36/1990, Budapest.
  35. Constitutional Court Decision No. 48/1990.
  36. Constitutional Court Decision No 78/1990.
  37. Constitutional Court Decision No 45/2000. In Magyar Közlöny120/2000, Budapest.
  38. Constitutional Court Decision No 45/2000. In Magyar Közlöny120/2000, Budapest.
  39. Halmai, G. "Hátrányos passzivizmus". In Fundamentum 4/2000, pp. 70-74. The Constitutional Court only dealt with the issue of legislative inaction and the motion came from ineligible applicants. It refused to address the issue of compliance with international treaties. Halmai argued that under Article 44 of Act No. 32 of 1989 on the Constitutional Court, the latter had the ex officio power to examine compliance.
  40. Under Article 77(2) of the Constitution, each social organ, public authority and citizen shall be bound by the Constitution. See, Halmai G. "Az alkotmányos demokrácia szégyene". In Élet és Irodalom, 35/2000.
  41. This issue is part of a debate constitutional lawyers have held for over a decade. The main arguments concentrate on the following questions: Are fundamental rights a distinct layer of law? Under what circumstances can the Constitutional Court interpret them? The more restrictive approach certainly has a chilling effect on ordinary court's reference to constitutional provisions. For a recent assessment see Gy őrfi, T. Az alkotmánybíráskodás politikai karaktere: Értekezés a magyar Alkotmánybíróság els ő tíz évér ől. Budapest: INDOK, 2001, pp. 36-41.
  42. Civil courts tend to rely on Article 76 of the Civil Code, which prohibits racial discrimination. This has been the case in civil litigation by human rights organisations. See, for example, the case study of P. village in NEKI. White Booklet 1999, Budapest: The Másság Foundation 1999. As an exception to the rule, in the so-called Profi Diszkont case (Monori Városi Bíróság, 3P21.321/1997/13) the judgement of the court of first instance invoked the Constitution.
  43. Krizsán, A. The Hungarian Minority Parliamentary Commissioner and the Anti-Discrimination Principle. PhD dissertation, Budapest: Central European University, September, 2001, pp. 59-61.
  44. Article 2(4) of Council Directive 76/207/EEC, OJ 1976, No. L39/40.
  45. Barnard and Hepple, p. 276.
  46. Case 152/84, Marshall v Southampton and SW Hampshire Area Health Authority, [1986] 2 ECR 723.
  47. Ibid.
  48. Case C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion SA, [1990] ECR I-4135.
  49. The joined cases C-6/90 and C-9/90, Francovich and Bonifaci v Italian Republic, [1991] ECR I-5357.
  50. Ibid.
  51. Race Equality Directive, Article 7(2).
  52. Race Equality Directive, Article 8(1).
  53. Grounds include sex, age, nationality and race
  54. Article 5 of the Race Equality Directive provides that, "With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin."
  55. Article 5(6) of the Labour Code provides that a regulation relating to employment may, under identical conditions and only in relation to employment, prescribe a duty to give preference to a certain group of employees.
  56. Government Resolution 1047/1999 on the second Medium Term Measures to Improve the Living Standards and Social Position of the Roma Population, "Legal Analysis", which provides for measures through, inter alia, education, employment, agriculture and regional development, social, health and housing programmes.
  57. Kádár, Farkas, and Pardavi. Monitoring the EU Accession Process: Minority Protection, p. 43.
  58. As emphasised by Mr Bossuyt, Special Rapporteur with the task of preparing a study on the concept of affirmative action, the term "positive discrimination" makes no sense. It is a contradictio in terminis, because a non-arbitrary distinction cannot be unjustified and illegitimate, thus it cannot be called discrimination. Bossuyt, M., "The concept and practice of affirmative action. Progress report", UN-Doc. E/CN.4/Sub.2/2001/15, para. 7. This paper uses the term positive action, as this corresponds to the terminology of the Race Equality Directive.
  59. Case C-450/93 Kalanke v Bremen, [1995] ECR I-3051.
  60. COM (96) 88 final.
  61. Case C-490/95 Marschall v Land Nordrhein-Westfalen, [1997] ECR I-6363.
  62. Case C-158/97 Badeck v Hessischer Ministerprasident, [2000] All ER (EC) 289.
  63. Case C-407/98 Abrahamsson v Fogequist, Judgement of 6 July 2000.
  64. Fredman, S. "Affirmative Action and the European Court of Justice: A Critical Analysis". In Jo Shaw (ed.). Social Law and Policy in an Evolving EU. Oxford: Hart Publishing, 2000, p. 182.
  65. Ibid. p. 176.
  66. Sex Discrimination Act 1975, ss. 47 and 48 and Race Relations Act 1976, ss. 37 and 38.
  67. Where the non-employment related provisions do allow some preferential treatment. See McColgan, A. Discrimination Law: Text, Cases and Materials, 2000, p. 142.
  68. Hepple, B., M. Coussey, and T. Choudhury. Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation. University of Cambridge, Center for Public Law and Judge Institute of Management Studies, 2000, Appendix I.
  69. McCrudden, C. "Rethinking Positive Action". In International Law Journal, Volume 15, p. 219, 1986.
  70. Government of the United Kingdom, Towards Equality and Diversity: Implementing the Employment and Race Directives, December 2001, p. 31.
  71. McColgan, p. 160.
  72. The UK example also shows that having separate legislation for discrimination on different grounds produces tensions on many levels, including in the shaping of positive action programmes. Given that the wording of Article 7 of Directive 2000/78, which establishes a general framework for equal treatment in employment and occupation, is identical to Article 5 in the Race Equality Directive, the same mistake could perhaps be more easily avoided in Hungarian law.
  73. Experts found the measures in education counter-effective. Information about the implementation of the housing programme is not yet available. Kemény, I. "Tettekre sürget? közállapotok avagy az állam felel?ssége". In Halmai, G. (ed.). A hátrányos megkülönböztetés tilalmától a pozitív diszkriminációig: A jog lehet?ségei és korlátai. Budapest: INDOK, 1998, pp. 227 and 236.
  74. Bossuyt, M. "The concept and practice of affirmative action. Progress report". UN-Doc. E/CN.4/Sub.2/2001/15, para. 94.
  75. McCrudden, C. "National Legal Remedies for Racial Inequality". In Fredman, S. and P. Alston (eds.). Discrimination and Human Rights: The Case of Racism. Oxford University Press, 2001, pp. 253-259.
  76. McCrudden, C. "The Effectiveness of European Equality Law: National Mechanismus for Enforcing Gender Equality Law in the Light of European Requirements". In Oxford Journal of Legal Studies 13/1993, p. 328.
  77. McCrudden, C. "National Legal Remedies for Racial Inequality". In Fredman, Discrimination and Human Rights, pp. 294-297.
  78. The Acts governing these fields were passed in 1976, 1975 and 1995 respectively. There are further legislation and statutory instruments relating to certain issues of discrimination on these grounds. A separate system is in force in Northern Ireland. Here, focus is exclusively on racial discrimination.
  79. In force since May 1, 2002.
  80. McColgan, pp. 253-358. Sample cases are selected in case several litigants are involved in similar claims.
  81. McCrudden, C., D.J. Smith, and C. Brown. Racial Justice at Work: The Enforcement of the Race Relations Act 1976 in Employment. London: Public Studies Institute, 1991.
  82. The CRE's Annual Report 1999/2000 emphasises that it should not be the only source of assistance for complainants and that, for this reason, it has helped develop a network of professional complainant aid centres.
  83. Between April 1999 and March 2000, 11,000 people approached the CRE for advice and 1,563 put in formal applications for assistance. It offered full legal representation to 166 applicants, whereas 32 received limited representation. Another 87 applicants were represented by trade unions, racial equality commissions and others. 71 cases were settled following litigation. Ibid., p. 7.
  84. McColgan, p. 254.
  85. An order declaring the rights of the complainant and a recommendation to the respondent to obviate or reduce the adverse effect are also remedies available under s.56 of the RRA.
  86. McColgan, pp. 284-288.
  87. Under Section 48 of the RRA, the CRE "may if they think fit, and shall if required by the Secretary of State, conduct a formal investigation for any purpose connected with the carrying out of those duties." For an account of the strictures imposed on the CRE by courts and of the efforts of the CRE to have those strictures lifted, see especially Bindman, G. "Law Enforcement or Lack of It". In Anwar, M., P. Roach, and R. Sondhi, (eds.). From Legislation to Integration? Race Relations in Britain. Basingstoke: Macmillan (in association with the Centre for Research in Ethnic Relations, University of Warwick, 2000.
  88. In the UK, under the Fair Wages Resolutions in effect between 1891 and 1983, government contractors were required to provide their employees with terms and conditions that were not less favourable than those generally established by collective bargaining in the relevant trade. Arguably, following Bentjes (Case C-31/87 [1990] 1 CMLR 287), EU public procurement directives allow social factors to be taken into account, as long as they do not operate in a way as to discriminate on the grounds of nationality.
  89. About the situation in the public sector prior to the RR(A)A, see Mills, G. "Combating Discrimination in the Public Sector". in International Law Journal, Vol. 31, No. 1, pp. 96-98.
  90. Government of the United Kingdom, pp. 26-27. For a brief overview of the arguments for a single statutory enforcement agency, see, Wintemute, R., "Time for a Single Anti-Discrimination Act (and Commission)?". In International Law Journal, Vol. 26, No. 3, pp. 259-262.
  91. Rodrigues, P.R. "The Dutch Experience of Enforcement Agencies: Current Issues in Dutch Anti-Discrimination Law". In MacEwen, M., (ed.). Anti-Discrimination Law Enforcement: A Comparative Perspective. 1997, pp. 50-64.
  92. See for the English version http://www.cgb.nl.
  93. Such as non-public offers by private persons and private educational establishments under Section 7(1)(d) and 7(2) respectively.
  94. Dutch Civil Code, Section 3: Articles 305(a) and 305(b).
  95. Goldschmidt, Jenny E. "Külön törvény - Külön bizottság. In Halmai, G. (ed.). A hátrányos megkülönböztetés tilalmától a pozitív diszkriminációig: A jog lehet őségei és korlátai. 1998. As Goldschmidt observes, a serious shortcoming of mediation is that it prevents the establishment of case law. See, Goldschmidt, J.E. and L. Goncalves-Ho Kang Yu. "Enforcement of Equal Treatment: The Role of the Equal Treatment Commission in the Netherlands". In MacEwen, M. (ed.). Anti-Discrimination Law Inforcement: A Comparative Perspective. 1997, pp. 141-153.
  96. Goldschmidt and Gonclaves-Ho Kang Yu.
  97. Following the defendant's refusal to comply with the ruling of the civil court, the ETC reported him for the offence under Article 184 of the Criminal Code. He was subsequently sentenced and the ETC brought summary proceedings against him, seeking to obtain the information required. Data provided on May 29, 2002, by the ETC in response to the author's query.
  98. Such as genocide (Article 155 of the Penal Code) apartheid (Article 157), violence against a member of a national, ethnic, racial or religious group (Article 174(B)) and incitement to hatred (Article 269).
  99. Owing to faulty regulations and the inaction of bailiffs, enforcement of these sanctions seems problematic.
  100. Nemzeti és Etnikai Kisebbségi Iroda (NEKI). White Booklet 2000. The case of Discotheque in D., p. 48.
  101. For a successful claim under this provision one needs to establish that the action complained of was basically of an administrative nature and that the victim exhausted all ordinary remedies before raising the claim under Article 349.
  102. Under Article 174 of the Labour Code, regardless of culpability, the employer is fully liable for the damage caused to an employee in relation to his/her employment.
  103. Cases listed in Kádár, Farkas, Pardavi. "Legal Analysis of National and EU Anti-Discrimination Legislation: A Comparison of the EU Racial Equality Directive and Protocol No. 12 with Anti-Discrimination Legislation in Hungary".
  104. The shortcomings of the labour inspections were reported by the Minority Commissioner in 1998, available at http://www.obh.hu.
  105. Section 20(2) of the Minorities Act establishes the position of the Parliamentary Commissioner for National and Ethnic Minorities as sets out that the rights and obligations of the Minority Commissioner shall be governed by Act LIX of 1993. It further states that the Minority Commissioner does not have the power to investigate complaints from members of minority groups other than those recognised under the Minorities Act. Persons belonging to other groups can, nonetheless, seek assistance from the Parliamentary Commissioner for Civil Rights. For example, Jews are not protected under the Minorities Act.
  106. The applicable regulation is Section 16 of Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (Ombudsman).
  107. Section 17(4) of Act LIX.
  108. See Krizsán, p. 134.
  109. Sections 16-21 of Act LIX.
  110. Section 22 of Act LIX.
  111. Section 23 of Act LIX.
  112. Sections 25-26 of Act LIX.
  113. Section 24 of Act LIX.
  114. In the so-called Karcag case, the Minority Commissioner collaborated with NEKI in bringing a local government that had ignored its recommendation to court. NEKI. White Booklet. Budapest: The Másság Foundation, 1998, p. 40.
  115. ECRI General Recommendation No. 2, Principle 3, points (e) and (f). Notably, ECRI recommends to accord specialised bodies as many of the functions listed as possible.
  116. Krizsán pp. 135-139. Note, however, that legislation does not impose the duty on the Minority Commissioner to perform either of the functions mentioned in this paragraph.
  117. Chapter II of the Employment Directive and Article 6 of the Equal Treatment Directive.
  118. Sadly, the Directive does not provide incentive to enhance the legal impact of recommendations.
  119. At the end of 2001, with funding from the EU, the government established a network of lawyers assisting Romani victims of discrimination. Without consultation with the Minority Commissioner, the Ministry of Justice selected and commissioned practising attorneys. Candidates working for well-established human rights NGOs were not selected. Information about the initiative is available at http://www.im.hu.
  120. Articles 2(2) and 3(2) of Act No. 63 of 1992 on the protection of personal data and the publicity of public data.
  121. See www.obh.hu.
  122. Bill No T/3804, 12 February 2001, submitted by Péter Hack and Mária Kóródi.
  123. Bill No T/4244, 20 April 2001, submitted by Magda Kósáné Kovács and Katalin Szili.
  124. Farkas, L., A. Kádár, and J. Kárpáti. Észrevételek az egyenl ő bánásmódról és az esélyegyenl őségr ől szóló törvény koncepciójához. December 15, 2002, available at http://www.helsinki.hu.
  125. Race Equality Directive, Article 2.
  126. Directive No 97/80/EC on the burden of proof in cases of discrimination based on sex.
  127. NEKI. White Booklet. Budapest: The Másság Foundation, 2000, p. 27.
  128. For instance in the cases of P. and Sz. towns, NEKI. White Booklet. 1999, pp. 10-15. 

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Cause of Action: Romani Children in State Care in Nógrád County (Hungary)

20 November 2017

The data showed that Romani children are grossly overrepresented in the care system in Nógrád County: although they make up under 20% of the county’s population, Romani children make up over 80% of those in care. The data showed a strong correlation between deep poverty, severe deprivation, and the entry of children into the care system.

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Roma Belong - Discrimination, Statelessness and Marginalisation of Roma in the Western Balkans and Ukraine

26 October 2017

The #RomaBelong project is a joint initiative by the European Roma Rights Centre (ERRC), the Institute on Statelessness and Inclusion (ISI) and the European Network on Statelessness (ENS) in collaboration with partner organisations in Albania ...

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ERRC submission to UN HRC on Serbia (June 2017)

30 June 2017

Written Comments by the European Roma Rights Centre concerning Serbia to the Human Rights Council, within its Universal Periodic Review, for consideration at its 29th session (January-February 2018).

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