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

10 May 2003

Lilla Farkas1


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 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.


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 firm


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