Datum van inontvangstneming : 27/12/2012

Datum van inontvangstneming : 27/12/2012

Translation C-526/12-1 Case C-526/12 Reference for a preliminary ruling Date lodged: 20 November 2012 Referring court: Debreceni Munkaügyi Bíróság (Hungary) Date of the decision to refer: 29 October 2012 Applicant: Józsefné Ványai (Nagyrábé, Hungary) Defendant: Nagyrábé Község Polgármesteri Hivatal (Nagyrábé, Hungary) In proceedings brought by Józsefné Ványai, applicant, resident in Nagyrábé (Hungary), against Nagyrábé Község Polgármesteri Hivatal (municipal administration of Nagyrábé), defendant, seeking a declaration of unlawfulness of dismissal and damages, the Debreceni Munkaügyi Bíróság (Labour Court, Debrecen) has made the following Order: The referring court refers the following questions to the Court of Justice of the European Union for a preliminary ruling: 1. Can Article 30 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that that provision is intended to guarantee the possibility of a legal remedy only for unlawful and unjustified dismissal? EN

REFERENCE FOR A PRELIMINARY RULING OF 29.10.2012 CASE C-526/12 2. Does that provision mean that an employer is bound to provide the employee with reasons in writing on dismissal and the dismissal will then not be unjustified? 3. Does failure to communicate reasons in itself make the measure unlawful or may the employer state reasons subsequently in the course of any employment litigation? 2 Grounds: By dismissal of 6 April 2011, the defendant, in the exercise of its powers as employer, terminated without grounds the applicant s legal relationship for the provision of public services, pursuant to Paragraph 17(1) of Law No XXIII of 1992 on the legal status of Government officials (a köztisztviselők jogállásáról szóló 1992. évi XXIII. törvény, Law on the status of officials ). The applicant brought a claim within the legal time-limit, seeking a declaration of the unlawfulness of the termination of her employment relationship. In lieu of her reinstatement in her previous duties, she sought an order that the defendant pay compensation for the unlawful termination of her employment relationship, equivalent to two months average salary, and any outstanding salary payments. In the meantime, the Hungarian Constitutional Court (az Alkotmánybíróság) had declared in its Decision No 29/2011 of 7 April 2011 ( Decision of the Constitutional Court ) that the provision on which the dismissal was based, inter alia, was unconstitutional and annulled it with effect from the day following the publication of the decision, that is, 8 April 2011. In that decision it was stated that Paragraph 17(1) of the Law on the status of officials breached the principle of the State based on the rule of law enshrined in Paragraph 2(1) of Law No XX of 1949 on the Constitution of the Republic of Hungary (a Magyar Köztársaság Alkotmányáról szóló 1949. évi XX. Törvény, the Constitution ), and the right to work (Paragraph 70/B(1) of the Constitution), the right to access to public duties (Paragraph 70(6) of the Constitution), the right to judicial protection (Paragraph 57(1) of the Constitution) and the right to human dignity (Paragraph 54(1) of the Constitution). The Constitutional Court stated that the ground for the declaration of unconstitutionality was the unconstitutional restriction of the fundamental right to effective legal remedies. The Decision of the Constitutional Court, following its own reasoning in Decision No 8/2011, adopted following the examination of the constitutionality of Law No LVIII of 2010 on the legal status of Government officials (a Kormánytisztviselők jogállásáról szóló 2010. évi. Törvény), found as follows: in the absence of legal guarantees where a legal relationship for the provision of public services for an

VÁNYAI indefinite term is terminated by dismissal, not even the possibility the official has of bringing a legal action against such a decision offers effective legal protection against the arbitrary decision of the employer. Under Paragraph 57(1) of the Constitution, everyone has the right to have his rights and duties in legal proceedings judged in a just, public trial by an independent and impartial court established by law. The Decision of the Constitutional Court stated that the Constitutional Court had inferred from Paragraph 57(1) of the Constitution the requirement of effective judicial protection enshrined in its Decision No 39/1997 of 1 July 1997, that is to say, that the legal provisions have to establish a legal context which allows the court to rule on the substance in relation to the rights disputed in the proceedings. The Decision of the Constitutional Court found, further, that the general guarantees of judicial protection established in Paragraph 57(1) of the Constitution are also required by Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. The European Court of Human Rights, in its recent case-law, has progressively extended the application of Article 6(1) to legal disputes brought by public officials concerning the provision of public services (Vilho Eskelinen and Others v. Finnland (Application no. 63235/00, Judgment of 19 April 2007); Iordan Iordanov and Others v. Bulgaria (Application no. 23530/02, Judgment of 2 July 2009)), and considers that the requirement of effective judicial scrutiny arises from the notion of fair proceedings which in turn is an aspect of the right to access to the courts. The European Court of Human Rights does not consider that judicial protection is effective where there are obstacles of procedural or substantive law which prevent the court from carrying out an independent review, and deciding with regard to the substance of the rights of the parties (Delcourt v. Belgium, 17 January 1970 Series A no. 11.; Barbera, Messegué and Jabardo v. Spain, 6 December 1988. Series A. no 285-C). Paragraph 1 of Law No CLI of 2011 on the Constitutional Court (az Alkotmánybíróságról szóló 2011. évi CLI. Törvény) determines the jurisdiction of that court. Under that provision, the Constitutional Court has no jurisdiction to examine whether legal rules breach Community law. Consequently, the Constitutional Court declared the application put forward to that effect inadmissible in the absence of jurisdiction pursuant to Paragraph 29(b) of its Rules of Procedure. The principle of sincere cooperation laid down by Article 10 of the Treaty establishing the European Community ( EC ) requires the courts of the Member States to interpret and apply the rules of Community law in accordance with the 3

REFERENCE FOR A PRELIMINARY RULING OF 29.10.2012 CASE C-526/12 case-law of the Court of Justice of the European Union ( Court of Justice ) on that subject. The second paragraph of Article 234 EC gives the courts or tribunals of all the Member States the right, where a question of the interpretation of Community law is raised in a case pending before it, to seek a ruling from the Court of Justice, if it considers that a decision on the question is necessary to enable it to give judgment. Article 6 of the Treaty on the European Union established that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, adopted on 12 December 2007 in Strasbourg, which is to have the same value as the Treaties. The rights, freedoms and principles set out in the Charter are to be interpreted in accordance with the general provisions of Title VII of the Charter which governs its interpretation and application. Article 30 of the Charter on Fundamental Rights of the European Union provides, as regards protection in the event of unjustified dismissal, that every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices. Under Article 51 of that Charter the provisions thereof are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. Accordingly, they are to respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. In the opinion of the Labour Court, Debrecen, it follows from a combined reading of Articles 30 and 51 of the Charter on Fundamental Rights that the provisions of Article 30 have direct effects as regards applicability. Debrecen, 29 October 2012 4