Retirement of Hungarian Judges, Age Discrimination and Judicial Independence: A Tale of Two Courts

Abstract

The retirement age of Hungarian judges was lowered by a new law from 70 to 62 years at the beginning of 2012. This generated heated legal and political debates both at national and European level. Firstly, in mid-2012 the Hungarian Constitutional Court stated its unconstitutionality based on the principle of judicial independence (33/2012. (VII. 17.) AB decision). Secondly, in November 2012 the Court of Justice (Court of Justice or CJEU) established the violation of EU age discrimination provisions of Directive 2000/78/EC (Directive), on the grounds that the introduction of the automatic retirement scheme was in breach with the principle of proportionality (C-286/12 European Commission v Hungary, judgment of 6 December 2012, nyr). This note highlights the relevant facts and analyses the decisions of the two Courts. We argue that although they came to the same conclusion regarding the unlawfulness of this widely debated measure, however, their legal basis and arguments were fundamentally different. Moreover, the importance of the CJEU judgment is shown by the fact that it was the first time that the Court of Justice found a standard retirement scheme to be unlawful by the application of a strict proportionality test.

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