1.

Under what conditions does EU law allow Member States to fix a maximum age for the exercise of official functions in the justice service? This is not the first time that the Court has been faced with this question since the adoption of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. ( 2 )

2.

Whereas, in Fuchs, ( 3 ) the issue was essentially whether there should be a compulsory age-limit at all, the present action for failure to fulfil obligations concerns a reduction in the age-limit for judges, prosecutors and notaries from 70 to 62. In making such a reduction, Hungary brought the retirement age in the justice service into line with that applicable generally. Six months after the entry into force of that new legislation, all officials who had already exceeded the new limit, in other words eight age groups were retired. In the years to come, however, the general retirement age now also applicable to the justice service will be raised by six months each year until a general retirement age of 65 is reached.

3.

The issue is, in essence, whether that legislation is justified.

4.

Recitals 8, 9, 11 and 25 in the preamble to Directive 2000/78 state:

…

…

5.

According to Article 1 of Directive 2000/78, the purpose of the Directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.

6.

Article 2(1) and (2)(a) of Directive 2000/78 sets out the principle of non-discrimination:

‘(1)   For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

(2)   For the purposes of paragraph 1:

7.

Article 3(1) (‘Scope’) of Directive 2000/78 provides:

‘Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

…

…’

8.

Article 6(1) and (2) of Directive 2000/78 contains possible justifications for differentiation on grounds of age:

‘(1)   Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

9.

Before 1 January 2012, Article 57(2) of Law No LXVII of 1997 allowed judges to remain in office until the age of 70.

10.

Article 90(ha) of Law No CLXII of 2011, which entered into force on 1 January 2012, now provides that judges must retire upon reaching the applicable retirement age-limit.

11.

Until 1 January 2010, the retirement age in Hungary was 62. In accordance with Article 18(1) of Law No LXXXI of 1997, in the version in force from 1 January 2010, the retirement age is still 62 only for persons who were born before 1952. For each age group thereafter the retirement age increases by six months at a time until the new general retirement age of 65 is reached in the 1957 age group.

12.

Under Article 230 of Law No CLXII of 2011, judges who had reached the age of 62 before 1 January 2012 had to retire on 30 June 2012 and judges who reach that age during 2012 have to retire on 31 December 2012.

13.

Similar rules apply to prosecutors. For notaries the new age-limit takes effect on 31 December 2013.

14.

On 17 January 2012, the Commission gave Hungary formal notice under Article 258 TFEU to submit its observations on the complaint that, by setting the new maximum age-limit for judges, prosecutors and notaries, it had infringed Articles 1, 2 and 6(1) of Directive 2000/78. Although, in its reply of 17 February 2012, Hungary disputed the assertion that it had committed an infringement, the Commission maintained its view in its reasoned opinion of 7 March 2012. In that reasoned opinion, it gave Hungary a month to bring to an end the infringement complained of. In its reply of 30 March 2012, however, Hungary did not abandon its position.

15.

Consequently, on 7 June 2012, the Commission brought the present action, in which it claims that the Court should:

16.

Hungary contends that the Court should:

17.

Hungary submits that, as a result of the new age-limit, the employment of 194 of the 2996 Hungarian judges was terminated on 30 June 2012. The decision of the Hungarian President to terminate the employment of a further 37 judges on 31 December 2012 has already been published. The same occurred on the dates in question to 79 and 20 out of a total of 1784 prosecutors. Of 315 notaries, 61 are due to retire on 31 December 2013.

18.

On application by the Commission, the President of the Court, by order of 13 July 2012, decided that the action should be determined pursuant to an accelerated procedure in accordance with Article 23a of the Statute of the Court of Justice of the European Union and Article 62a of the Rules of Procedure. The participants submitted written observations and presented oral argument at the hearing on 1 October 2012.

19.

On 16 July 2012, the Hungarian Constitutional Court declared the change to the retirement age for judges to be unconstitutional. ( 4 ) Its decision has retroactive effect from 1 January 2012, but does not automatically mean that the judges already compelled to retire will be reinstated in their posts. They must apply to the competent Hungarian courts to secure such reinstatement.

20.

Hungary takes the view that, in the light of the Hungarian Constitutional Court’s decision, the dispute has been disposed of so far as concerns the provisions annulled retroactively to 1 January 2012. That objection concerns the retirement age for judges.

21.

At first sight, it would appear that, at the material time, that is to say when the time-limit laid down in the reasoned opinion ( 5 ) expired on 7 April 2012, the provisions complained of did not exist, since they were retroactively repealed by virtue of the Constitutional Court’s judgment. Accordingly, the subject-matter of the action has been disposed of in so far as it relates to judges.

22.

The fact is, however, that the provisions relating to judges were not retroactively repealed in their entirety. On the contrary, their existence at the material time is demonstrated by the fact that, on 30 June 2012, 194 judges and 79 prosecutors were retired from service on the basis of those provisions. Moreover, not even the judgment of the Constitutional Court itself has direct retroactive effect since it has not led to the reinstatement of those judges in their former posts.

23.

Consequently, the situation alleged to be contrary to EU law has not been fully removed. ( 6 )

24.

The aforementioned judgment did not therefore have the effect of disposing of the dispute in relation to the judges concerned.

25.

In accordance with Article 2(1) read in conjunction with Article 1 of Directive 2000/78, there is to be no direct or indirect discrimination on grounds of age. However, a difference in treatment may be justified under Article 6.

26.

Directive 2000/78 is applicable to judges, prosecutors and notaries, given that, pursuant to Article 3(1), it applies to all persons, as regards the public and private sectors, including public bodies. Moreover, unlike in the case of the armed forces, there is no exception for members of the justice service.

27.

Termination of employment on reaching pensionable age always constitutes discrimination on grounds of age within the meaning of Article 2(1) and Article 6(1)(a) of Directive 2000/78.

28.

Such a provision affects employment and working conditions within the meaning of Article 3(1)(c) of Directive 2000/78 by preventing the judges, prosecutors and notaries concerned from continuing to work beyond the age of 62. Furthermore, that provision introduces a difference of treatment based on age within the meaning of Article 2(1) of that directive by affording such persons treatment less favourable than that enjoyed by persons who have not yet reached that age. ( 7 )

29.

If an age-limit in and of itself constitutes a difference in treatment, the same must a fortiori be true of a reduction in the age-limit.

30.

Under Article 6(1) of Directive 2000/78, differences of treatment on grounds of age do not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives. The means of achieving that aim must also be appropriate and necessary.

31.

The Court examines that justification in two stages: first, it examines the aims of the measure and then, in the light of the legislative context and the advantages and disadvantages taken as a whole, considers whether it is appropriate and necessary. ( 8 ) However, I think it will be clearer if I assess the appropriateness and necessity of the measure by applying the examination process used for the principle of proportionality. ( 9 )

32.

Under that principle, the measures must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question. Where there is a choice between several appropriate measures, recourse must be had to the least onerous. The disadvantages so caused must be proportionate to the aims pursued. ( 10 )

33.

It must be borne in mind in this regard that the Member States, at national level, enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it. ( 11 ) That discretion exists at every level of the examination of proportionality. Accordingly, the Court does not replace the assessment of the Member States but simply examines whether it seems unreasonable. ( 12 )

34.

In the present action for failure to fulfil obligations, it is for the Commission to prove the existence of the infringement alleged. It falls to the Commission to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on mere presumptions for that purpose. ( 13 )

35.

If, on the other hand, the Member State seeks to rely on an exception to a general principle, it is for it to prove that the conditions governing that exception have been fulfilled. ( 14 ) For the purposes of applying Article 6(1) of Directive 2000/78, the requirements attaching to such proof must not become excessive, taking into account the broad discretion enjoyed by the Member State.

36.

I shall now examine, in the light of those criteria, whether the five objectives cited by Hungary are legitimate and whether the measures are appropriate and necessary for the purposes of attaining those objectives. If appropriate, it must then be examined whether the disadvantages caused by the measure are proportionate to the advantages of the remaining objectives. First of all, however, it is necessary to address the Commission’s argument that the objectives of the new age-limit are not sufficiently clear.

37.

The Court has repeatedly held that it cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important, however, that other elements, taken from the general context of the measure concerned, enable the underlying aim of that law to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary. ( 15 )

38.

However, the demands placed on those elements must not be excessively strict. Thus, the Court has even allowed the arguments put forward by a Member State at the hearing to suffice for the purposes of clarifying the objectives of an age-limit. ( 16 ) It therefore seems reasonable to me to accept the argument put forward by Hungary to the effect that the objectives set out below are sufficiently clear from the legislative procedure, although it adduces no further evidence in support of that assertion. Moreover, the possible objectives are to some extent discernible even when they are not expressly specified.

39.

Hungary submits that the new age-limit is intended to ensure the continued viability of the pension scheme.

40.

This is not one of the objectives cited by way of example in Article 6(1) of Directive 2000/78. That list is not exhaustive, however. ( 17 ) It includes social policy objectives, such as those related to employment policy, the labour market or vocational training. ( 18 ) The financial balance of a pension scheme also constitutes such a social policy objective. ( 19 )

41.

However, lowering the age-limit increases the number of persons in receipt of a pension and reduces the number of those contributing towards the financing of the scheme. This places a greater burden on the scheme. Consequently, notwithstanding the broad discretion enjoyed by the Member States, the measure is not capable of contributing towards the financial balance of the pension scheme.

42.

This argument put forward by Hungary must therefore be rejected.

43.

Hungary submits that the new age-limit is also intended to establish a balanced age structure. The connection between age-limits and age structure is obvious. The Court has already held that the aim of establishing an age structure that balances young and older civil servants can constitute a legitimate aim of employment and labour market policy. ( 20 )

44.

It is doubtful, however, whether the abrupt introduction of the new age-limit can contribute towards the establishment of a balanced age structure in the justice service. It means that judges in eight age groups will have to be replaced with lawyers currently on the employment market. In the future, therefore, the age groups recruited in this way will carry a disproportionately large weight within the justice service by comparison with the other age groups. What is more, when the officials in those age groups come to take retirement themselves, they will trigger a disproportionately large recruitment requirement.

45.

Whether that outcome will materialise depends on the existing age structure and the recruitment policy operated in Hungary. Hungary has made no submissions on these points, however.

46.

Even if it were recognised, in the light of the broad discretion enjoyed by the Member States in the application of Article 6(1) of Directive 2000/78, that the introduction of the new age-limit can contribute towards a balanced age structure, it would not need to be introduced exactly as it has been. Indeed, a balanced age structure can be achieved even more effectively if the new age-limit is introduced progressively over a number of years. It would not then be necessary to replace lawyers representing eight age groups all at once.

47.

Consequently, the objective of a balanced age structure cannot justify the legislation at issue.

48.

Hungary further submits that the new age-limit is intended to improve the effectiveness of the public justice service.

49.

That objective appears to be based on the consideration that the recently recruited younger lawyers are able to perform their duties better than the retired older lawyers. In this respect, the Court has already recognised in principle, in relation to State prosecutors, that the provision of a high-quality justice service can be a legitimate aim of an age-limit. ( 21 )

50.

It may be accepted that Hungary is right to say that an age-limit of 62 mitigates the risk of an age-driven reduction in the quality of the justice service to a greater extent than an age-limit of 70. To this extent, it is in principle capable of improving the quality of the justice service.

51.

Hungary also states that, because their training is more recent, younger lawyers have more up-to-date legal knowledge, for example, in the area of EU law, which has been taught only recently in Hungary. It is indisputable that the forced retirement of legal personnel and their replacement by younger lawyers may be a way of bringing more up-to-date legal knowledge of this kind into the justice service.

52.

It is highly doubtful, however, that newly recruited lawyers will be able to practise the professions of judge, prosecutor and notary public better than the departing lawyers. After all, compared with other professional groups, lawyers can work effectively until a relatively advanced age. In particular, past experience and the enhanced natural authority that often comes with age are of great practical use in the legal profession.

53.

Moreover, there is a danger that, in order to meet the extraordinarily high recruitment requirement, the justice service will to some extent have to make do with a distinctly lower level of qualification from the newly recruited lawyers. If, for example, new judges and prosecutors were to be recruited as a result of all the compulsory retirements put into effect in 2012, the 273 best applicants would have to be taken on. If, on the other hand, the officials in only one age group were replaced, the recruitment could be confined to about one eighth of that number, that is to say the 35 best applicants.

54.

As regards the particular group of judges concerned, it must also be borne in mind that their abrupt forcing into retirement may give rise to doubts as to the independence, and therefore the quality, of the courts. ( 22 ) Under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1959, and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, courts must be independent and impartial and established by law. The Court of Justice, too, has stressed the need for the courts to be independent, in particular in the context of references for a preliminary ruling. ( 23 )

55.

According to settled case‑law, there are two aspects to the concept of judicial independence: an external aspect and an internal aspect. Of importance in the present case is the external aspect of independence, which presupposes that the decision-making body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. ( 24 )

56.

Judges cannot therefore be removed by the executive during their term of office. ( 25 ) While it is true that this case does not concern measures taken by the executive in relation to individual judges or proceedings, it does concern a serious interference with the justice system, that is to say the removal of a large number of judges who, under the previous legislation, would have remained in office for up to a further eight years. The significance of such interference is not confined to circumstances where it actually seeks to influence the course of justice. On the contrary, any semblance of the exerting of influence must be avoided. ( 26 )

57.

Even if it were none the less to be recognised, in the light of the broad discretion enjoyed by the Member States, that reducing the age-limit to 62 can help improve the effectiveness of the justice service, such a reduction is not in any event necessary. This follows above all from the contradictory provisions of the Hungarian legislation. Since the age-limit is to be brought back up to 65 over the coming years, it would seem that Hungary, too, assumes that the quality of the justice service does not require an age-limit of 62. ( 27 )

58.

Furthermore, with particular regard to the introduction of more up-to-date legal knowledge into the justice service, there are more moderate remedies available. Lawyers acquire up-to-date legal knowledge not only when training but also in the course of practising their profession, through private study or as part of organised further training, for example.

59.

Consequently, the objective of improving the quality of the justice service cannot justify the Hungarian legislation either.

60.

Hungary’s main argument is that the new age-limit brings the situation of judges into line with that of the rest of the civil service. Although the Commission questions whether that objective is sufficiently recognisable, it is apparent not least from the fact that the age-limits are actually being aligned.

61.

Providing that employees must leave the labour force and take retirement at a particular time falls in principle within the scope of the objectives covered by Article 6(1).

62.

The legitimacy of the objective of aligning age-limits is clear in particular from the fact that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. ( 28 ) Doubts as to the consistency of legislation arise in particular from exceptions. Thus, in the context of age-limits for prosecutors, the Court has already examined whether exceptions applicable to other categories of civil servant cast doubt on such consistency. ( 29 ) The alignment of age-limits can therefore strengthen the consistency of the entire system.

63.

The ultimate aim of aligning age-limits is to give effect to the general principle of equal treatment. That principle, now also enshrined in Article 20 of the Charter of Fundamental Rights, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 30 ) The assumption that the situation of lawyers in the justice service is comparable with the situation of their professional counterparts elsewhere in the civil service remains, in principle, within the framework of the discretion enjoyed by the Member States. The Commission itself has not objected to that assumption.

64.

An immediate alignment of the retirement age throughout the civil service cannot be achieved otherwise than by way of the new age-limit. The contested legislation would therefore be appropriate and necessary for the purposes of attaining that objective.

65.

Taking into account the principle of equal treatment, however, such an objective is no longer legitimate in the specific situation at issue here. Hungarian judges, prosecutors and notaries differ in one important respect from lawyers elsewhere in the civil service. Until now, they were able to assume that they would not have to retire until they reached the age of 70. Hungary has not explained why, in spite of that legitimate expectation, there is a legitimate interest in immediately reducing the age-limit by eight years for the sake of consistency.

66.

The fact that, in this situation, there is a legitimate interest in adopting transitional rules instead is apparent not least from the fact that Hungary is spreading the raising of the age-limit for the civil service as a whole, an increase of only three years, over several years. Those differences in the transitional rules indicate that the interests of those affected by the reduction of the age-limit have not been taken into account in the same way as the interests of the other employees in the civil service whose age-limit is being raised.

67.

A further inconsistency lies in the fact that — as the Commission maintains without contradiction by the applicant ( 31 ) — the other employees in the civil service do not automatically retire upon reaching the age-limit but only when they have also acquired the years of service necessary to receive a pension. Judges, prosecutors and notaries may be compelled to retire even though they have only a reduced pension entitlement. To this extent, the new age-limit for the justice service interferes with the rights of those concerned to a greater extent than is necessary for the purposes of aligning age-limits throughout the civil service.

68.

Consequently, the objective of aligning age-limits in the civil service cannot justify the immediate reduction of the age-limit by eight years.

69.

The last objective cited by Hungary is the removal of barriers to access for young lawyers to the justice service. This is an obvious consequence of having maximum age-limits and in particular of reducing them. It is settled case‑law that the encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession is involved. ( 32 )

70.

The new age-limit is capable of promoting access for young lawyers to the justice service. However, it is important to bear in mind the differences between its long-term and immediate effects.

71.

It permanently reduces the length of service of lawyers in the justice service, as they must now take retirement eight years earlier. Over the coming years, however, that effect will be diminished by the progressive raising of the retirement age back to 65, so that the reduction will ultimately be only five years. None the less, posts within the justice service will still become vacant earlier than under the previous age-limit.

72.

For the time being, however, it is its immediate effect which is more significant. In 2012, the forced retirement of lawyers in eight age groups has meant that an unusually large number of posts have to be filled, to the benefit of young lawyers available on the job market. On the other hand, those posts will no longer be available to lawyers in succeeding age groups as they will be blocked in the long term by the lawyers now being recruited. Consequently, although attaining the objective of the sustained promotion of access for young lawyers is not precluded, it is seriously impeded.

73.

The immediate introduction of the new age-limit is not therefore necessary in order to promote access for young lawyers to the justice service on a sustained basis. On the contrary, the potential distortion of the age structure of the service adversely affects the long-term opportunities for access available to young lawyers. ( 33 ) A fair balance between the various generations of lawyers would serve to distribute the posts made vacant by reducing the age-limit as evenly as possible among future age groups. The best way of achieving that balance would be to reduce the age-limit progressively to 65, which is the age-limit ultimately sought in any event.

74.

If, however, the objective is to promote maximum access for lawyers available on the employment market now, there does not, in fact, appear to be any other measure as effective as immediately reducing the age-limit to 62.

75.

Even so, such an objective can be regarded as legitimate only if there are special reasons for promoting that particular group, since not only does it inevitably impose a burden on the lawyers who have been forcibly retired but it also has the effect, in the medium and longer term, of blocking the posts that would otherwise be open to lawyers in subsequent age groups. Hungary has not given any such reasons.

76.

Consequently, the objective of facilitating access for young lawyers to the justice service cannot justify the introduction of the new age-limit.

77.

In so far as the measures adopted are found to be appropriate and necessary in order to attain the legitimate aims pursued, there is usually a need also to examine whether they have undue adverse effects on the persons concerned (prohibition of undue adverse effects). ( 34 ) Since the introduction of the new age-limit is not appropriate and necessary for the purposes of attaining any of the stated legitimate objectives, this issue no longer needs to be examined per se. Indeed, the action is well founded in the light of the foregoing considerations alone.

78.

None the less, in the event that the Court does not concur with my assessment in relation to all the objectives cited, I shall now examine the prohibition of undue adverse effects. In accordance with that prohibition, the right balance must be found between the different interests involved. ( 35 )

79.

In order to be able to undertake this assessment in the alternative, I would have to assume — contrary to the view I have expressed — that the new age-limit is appropriate and necessary for the purposes of attaining one or more of the five objectives examined above.

80.

A full assessment would also require me to measure the hypothetical advantages of the new age-limit.

81.

However, such speculation is pointless. I shall therefore confine my observations on the prohibition of undue adverse effects to an examination of the disadvantages of the new age-limit. On that basis, I shall be able to say how extensive the advantages of the new age-limit would have to be in order for it to be justified.

82.

The right of the lawyers concerned to continue to pursue their chosen profession is directly affected. Although they can in theory still practise as lawyers outside the justice service, in private practice, for example, they no longer have the possibility of continuing to work in the role which they actively performed until they reached the age-limit.

83.

That interference with the freedom to pursue an occupation gives rise to economic disadvantages, since it must be assumed that, as a rule, the persons concerned will henceforth receive only a relatively modest pension rather than a full salary. ( 36 )

84.

It is true that the Court has recognised that a measure which allows workers to be compulsorily retired when they reach the age of 65 is capable of serving the objective of encouraging recruitment and can be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable. ( 37 ) However, its reasonableness depends on a number of factors.

85.

Thus, the loss of income is particularly significant where the persons concerned made economic decisions in the expectation that they would remain in office. They might, for example, have taken out a loan, concluded a private supplementary old-age pension agreement or turned down lucrative employment in the private sector. Nor does there appear to be any measure in place to mitigate such disadvantages. Furthermore, many of those affected may even have to take a significant reduction in their pension because they have not worked long enough to acquire a full pension entitlement. ( 38 )

86.

Hungary argues that the new age-limit has been foreseeable since June 2011. However, the persons concerned could not have anticipated in any of the economic arrangements they made before then that they would have to retire before reaching the age of 70.

87.

Such serious adverse effects on the persons concerned would have been considerably reduced and many of the disadvantages to the objectives pursued would have been avoided if Hungary had introduced the new age-limit in a different manner. It is after all important to coordinate the lowering of the retirement age for judges, prosecutors and notaries with the raising of the retirement age for the other members of the civil service. To do this, Hungary would simply need to apply a progressive reduction of the retirement age in the justice service to 65 so that that age-limit takes effect at the same time for both groups.

88.

It must be concluded from Hungary’s complete failure to take that possibility into account that it did not seek to establish a fair balance between the interests of the lawyers concerned and the interest in introducing the new age-limit.

89.

Moreover, the foregoing considerations show that the advantages which the immediate introduction of the new age-limit brings in terms of attaining a legitimate objective would have to be particularly extensive to outweigh the serious disadvantages set out above. Irrespective of whether the Court, contrary to my own view, considers the measure at issue to be appropriate and necessary for the attainment of one or more of the stated objectives, such extensive advantages do not appear to exist.

90.

Consequently, the action must be upheld.

91.

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been successful, Hungary must be ordered to pay the costs.

92.

I therefore propose that the Court should rule as follows: