There are several fields in which Hungarian legislation must change in order to comply with EU legislation and to ensure that noone is discriminated against based on her or his sexual orientation. The most important fields are employment and the family law. The two chapters of this paper elucidate the shortcomings of the existing Hungarian legislation and summarize what could be done in order to eliminate discrimination and secure equal opportunities in this respect.
 
I. The Framework Directive (Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation) and Hungarian law

As a result of efforts to conform to Article 13 of the Amsterdam Treaty, the Council of the European Union accepted a directive (2000/78/EC) which establishes "a general framework for equal treatment in employment and occupation." The directive obliges member states to accept laws that combat discrimination in the fields of employment and occupation. Discrimination based on race and ethnicity is forbidden by a separate directive (2000/43/EC).

The directive refers to Article 13 of the Treaty establishing the European Community, the proposal from the Commission, the opinion of the European Parliament, the Economic and Social Committee and the Committee of the Regions.

The Preamble lists the following as the basis of its argument, among other things:
(1) Article 6 of the Treaty on European Union, which says that the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
(2) The principle of equal treatment between women and men is well established by an important body of Community law, in particular in Council Directive 76/207/EEC of 9 February 1976 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.
3. In implementing the principle of equal treatment, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.
4. The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognized by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No 111 of the International Labor Organization (ILO) prohibits discrimination in the field of employment and occupation.
5. It is important to respect such fundamental rights and freedoms. This Directive does not prejudice freedom of association, including the right to establish unions with others and to join unions to defend one's interests.
6. The Community Charter of the Fundamental Social Rights of Workers recognizes the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people.
7. The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States. To this end, a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled, trained and adaptable workforce.
8. The Employment Guidelines for 2000 agreed by the European Council at Helsinki on 10 and 11 December 1999 stress the need to foster a labor market favorable to social integration by formulating a coherent set of policies aimed at combating discrimination against groups such as persons with disability. They also emphasize the need to pay particular attention to supporting older workers, in order to increase their participation in the labor force.
9. Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realizing their potential.
10. On 29 June 2000 the Council adopted Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. That Directive already provides protection against such discrimination in the field of employment and occupation.
11. Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.
12. To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.
(29) Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection. To provide a more effective level of protection, associations or legal entities should also be empowered to engage in proceedings, as the Member States so determine, either on behalf or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts.
(30) The effective implementation of the principle of equality requires adequate judicial protection against victimization.
(33) Member States should promote dialogue between the social partners and, within the framework of national practice, with non-governmental organisations to address different forms of discrimination at the workplace and to combat them.
(37) In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty, the objective of this Directive, namely the creation within the Community of a level playing-field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

The Preamble also lays down that the Directive is without prejudice to national laws on marital status and the benefits dependent thereon (para. 22) and that it lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favorable provisions (para. 28).

Article 2 of the "General Provisions" defines the two forms of discrimination: direct and indirect discrimination, as well as harassment. According to the directive, "direct discrimination shall be taken to occur where one person is treated less favorably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1" (religion or belief, disability, age or sexual orientation). Indirect discrimination shall be taken to occur "where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation 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."

Paragraph 3 about harassment says that "harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment."

The scope of the Directive is defined in paragraph 1 of Article 3:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of, and involvement in, an organization of workers or employers, or any organization whose members carry on a particular profession, including the benefits provided for by such organizations.

Chapter II of the Directive is about "Remedies and Enforcement." Paragraph 1 of Article 9 says the following about remedies: "Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended." According to Paragraph 2, "Member States shall ensure that associations, organizations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive."

Article 10 is about the burden of proof. According to its para. 1, "Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment." (The anti-discrimination legislation of the Hungarian Labor Code is in accordance with this: Article 5 para. 8.)

Article 12 makes it obligatory for the states to disseminate information: "Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force in this field, are brought to the attention of the persons concerned by all appropriate means, for example at the workplace, throughout their territory."

Article 13 and 14 are about social dialogue. "Member States shall, in accordance with their national traditions and practice, take adequate measures to promote dialogue between the social partners with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct and through research or exchange of experiences and good practices." (Article 13); "Member States shall encourage dialogue with appropriate non-governmental organizations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on any of the grounds referred to in Article 1 with a view to promoting the principle of equal treatment." (Article 14).

For human rights NGOs Article 19 of the Directive (about reports) is especially important:
"1. Member States shall communicate to the Commission, by 2 December 2005 at the latest and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.
2. The Commission's report shall take into account, as appropriate, the viewpoints of the social partners and relevant non-governmental organisations. In accordance with the principle of gender mainstreaming, this report shall, inter alia, provide an assessment of the impact of the measures taken on women and men. In the light of the information received, this report shall include, if necessary, proposals to revise and update this Directive."

The anti-discrimination paragraph of the Hungarian Labor Code was revised because of another directive: 97/80/EC (about the burden of proof in gender-related discrimination cases). The new para. 1 of § 5 of the Labor Code includes the family status of employees, and disability as grounds on which nobody should be discriminated against.

The new para. 7 is about remedies. These are not defined in detail, so juries will have a great role in defining them. Para. 8 is about the burden of proof – it is the employer who has to prove that s/he did not violate the laws forbidding discrimination.
The Hungarian Labor Code does not contain harassment or the instruction to discriminate against persons, although these are significant elements of the 2000/78/EC directive.

But the two most important deviations from the laws of the EU are that Hungarian anti-discrimination measures do not mention discrimination based on sexual orientation, and that the ideas laid down in measures are hardly relevant in everyday life. In order to change these, more legal reforms and actions against prejudices are needed – as well as trainings and the information of employees about their rights.
 

Newer Developments in Hungary

In November 2002 the Hungarian Ministry of justice issued a "conception paper" on a draft law on equal treatment and equal opportunities (IM/HÁT-IV/2002/TÜ/472).

According to Imre Papp (legal vice state secretary of the Ministry of Justice), as detailed at a conference on the new law held on 4 June 2003, the new law on equal treatment and equal opportunities has been drafted according to the conception which the Hungarian Government accepted in the spring of 2003. The new draft law is a general law, which entirely fulfills the harmonization of Community law. It defines the notions related to discrimination (e.g. direct and indirect discrimination, harassment, segregation), and recommends to prohibit discrimination based on race, color, nationality, language, health status, disability, religion, political or other opinion, gender, sexual orientation, age, social or wealth status, the type of labor contract or other circumstances. It changes the burden of proof if someone violates the principle of equal treatment. It also contains the possibility of actio popularis: state and non-governmental organizations can start lawsuits in the name of those whose rights were violated. A new ministry was formed, which is responsible for equal opportunities, and must work out a National Equal Opportunities Program. A major element of the program will be the inclusion of NGOs.

Jeno Kaltenbach (Ombudsman of National and Ethnic Minority Rights) emphasized the role of education in his speech ("A Functioning System, Or Just a Legislation 'Practice'?"): the education of judges, attorneys, the police force, state officers, health workers and teachers. He added that it is also essential to inform the general audience.

The Foundation for the Women of Hungary (Magyarországi N?i Alapítvány, MONA) had submitted its recommendations before the conception was reviewed and accepted by the government. Its main recommendations refer to the work of the new minister, who is responsible for the National Equal Opportunities Program. They recommend the publication of a manual for students and legislators as well as law enforcers, which should also contain relevant European cases. Trainings should also be held for lawyers, judges and employment law conductors, to be able to understand and apply the principles of the EU directives. Representatives of governmental and non-governmental organizations should get opportunities to learn more about the equal opportunities policies of the European Union (through meetings, conferences, publications). Employees should get written information about their rights. Trainings on equal opportunities should be supported at workplaces. It is also important to regularly check the knowledge of people about the directives and the principles it supports, and to organize media campaigns, publish brochures, and conduct surveys.

There is a chance now that Hungary is going to have a comprehensive law on equal opportunities and the prohibition of discrimination. It is the responsibility and task of the government and NGOs to put it into practice and useful for everyone who needs it.
 
 
II. Family Law
 
In the European Union

As a policy paper on "Families, Partners, Children and the European Union" (Drafted for the Board of ILGA-Europe by Mark Bell, Lecturer in Law, University of Leicester, April 2003) elucidates, issues such as marriage, partnership and parenting have been traditionally treated as falling within national legal competence and hence outside the powers of the European Union. However, this situation is now rapidly changing: the Union is more and more involved in the coordination of civil law systems, including family law. This also coincides with a period of change and reform in national family law systems.

EU Member States have varying regulations for same-sex couples: marriage is possible in the Netherlands and Belgium; registered partnership in Denmark, Sweden, Finland, the Netherlands, Norway and Iceland (with major distinctions related to parental rights: access to reproductive technologies and adoption); other forms of legally recognized partnership in France (PaCS); and rights attached to de facto cohabitation or fragmentary rights in other states.

But the EU law does not currently accommodate persons in registered partnerships, other forms of legally recognized partnership or those who are simply living in a durable relationship. This is intolerable, as it gainsays the right to respect for family life, the right to non-discrimination, the right to free movement, as well as the mutual recognition principle.

Same-sex second parent adoption (when a non-biological parent can adopt the child of her/his partner) is only possible in Denmark, Sweden and the Netherlands, while same-sex couples can adopt in Sweden, the Netherlands, England and Wales.

ILGA-Europe recommends that all Member States should end any discrimination relating to marriage, partnership, adoption and parental responsibility.
 

In Hungary

Marriage in Hungary is regulated by the Family Law. Only heterosexual couples can marry, and married couples enjoy a number of advantages related to parenting and properties. Gay and lesbian parents who used to live in a heterosexual marriage also often face discrimination in courts if their former spouse argues that they endanger the "moral development" of the child (72/A §).

Only single persons or heterosexual couples can adopt children. In case of a single person, her or his partner cannot be the second parent of the child, only if they are married. Only married women have the right to artificial insemination.

Since 1996 (after the 14/1995 (III.13.) decision of the Hungarian Constitutional Court), both heterosexual and same-sex couples can live in partnership, which is a right attached to de facto cohabitation. According to the 685/A § of the Civil Code, any two people who live in a shared household, in emotional and economic community, can be regarded as partners. This, of course, does not mean that partners cannot or should not write a contract to declare that they are living together.

Rights related to partnership are mentioned in more than 100 places in the Hungarian laws. The Health Law says that partners are close relations; partners have the right to not be witnesses in court cases; and the Labor Code and the social security legislation also provide partners with some rights. These, however, are not systematic, coherent or sufficient.

Partners, unlike married couples, can only inherit after one another if they leave a final will.


It is obvious that Hungary has a long way to go to achieve the equality and equal opportunities of same-sex couples.