The Labor Law is one of the most important field of my expertise, therefore I find it very crucial to publish in this topic. The Labor Law (Employment) basically evolved from the general Civil Substantial Law and became an individual field of law. It gives the special feature of this field of law that it is in a fundamentally close relationship with the Civil Substantial Law but in some another legal institutions these are significantly different from the Civil Law. There are two laws which often regulate the Labor Law next to some other decree. These two laws are Act I of 2012 on the Labor Code and Act V of 2013 on the Civil Code. Firstly it has to apply to the Labor Code and secondly the Civil Code. All in all, the Civil Code appears on subsidiary basis in Labor Law. This means that what the Labor Code does not regulate, the provisions of the Civil Code has to be applied.
In this section, we are going to discuss articles related to the regulation of creation of employment relationship, changes of employment relationship and the termination of employment relationship. This part of the blog also includes those articles of personality rights which are in connection with athletes and regular employees who are working in the general labor relations.
Since General Data Protection Regulation (GDPR) entered into force, it has been especially important that personal data and personality rights of athletes and regular employees have to be handled securely. Thus in this heading, the articles of the Labor Law which are connected to athletes’ and regular employees’ personal data and personality rights are also published. These articles are related to the GDPR of the European Union (hereinafter: EU) decree and the Right to information self-determination and Freedom of Information Act.
Next to the aforementioned topics, in this section the following articles related to the damages liability of employers and the employees will be published as well. This heading includes articles and studies which are in connection with binding labor contracts and study contracts, with their content, labor wages, wage allowances (bonus) and all the articles which contain those topics that closely related to the Labor Law and Data Protection Law.

The enforcement of the claim of orphan’s benefits.

Pursuant to the SSPA Sec. 64 (1) applications for pension benefits shall be submitted in writing, using the prescribed form or standard electronic form (hereinafter referred to as proof of claim form). This action constitutes as an application under the Act CL of 2016 on General Public Administration Procedures (hereinafter: GPAP) Sec. 35 (1). The entitlement of pension benefits is related to the person of the rightholder, therefore it can not be enforced by nobody nor the successor and the spouse. Procedures relating to the enforcement of claims for benefits available under the social security system and other proceedings under this Act shall be exempt from duties and charges. It shall mean that the conducting of the procedure which is regulated in the Act XCIII of 1990 on the Duties (hereinafter: Duties Act) can be initiated without any obligation of paying duties.

The proof of claim form can be downloaded from the website of Hungarian State Treasury, under the code number K11.

Pursuant to SSPA Sec. 64. (2) Claims may be enforced retroactively for maximum 6 months, meaning that benefits may be established – if all conditions for entitlement are satisfied – as of the first day of the sixth month preceding the date of filing the proof of claim. The claim shall be adjudged according to the legal regulations in force on the date of commencement of benefits.

It shall be attached to the proof of claim form:

  • the death certificate of the deceased rightholder or the court ruling declaring the rightholder dead or missing;
  • the fully enforceable acknowledgement of paternity by the guardian authority (it can be any government office or district office);
  • the birth certificate of the pension claimant;
  • the certificate of the service time by the employer (it shall mean that certification which is issued by the employer to certify the existence of employment relationship. It also certify the time when the employee was in the employment relationship with the employer and out of his/her wages the pension contributions were paid by the employer.);
  • In case of private entrepreneurship, those certifications which are available on the register of pension insurance administration agencies (These can be queried from the customer site ,,Ügyfélkapu”.);
Source: pexel.com

It shall be considered as service time the period of the insurance relationship after 31th December 1997. Furthermore pursuant to the Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits Sec. 29 (1) the employment, public and civil servant relationships, service relationships, periods of studies in vocational training schools under scholarship or apprenticeship agreement are considered as service time too.

Pursuant to the Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits Sec. 32 (1) it also shall be taken account as service time the following elements down below.

(1) The following periods shall be recognized as service time:

a) when receiving sick-pay (benefits while on sick leave), benefits for accident-related injuries or compensation aid, pregnancy-maternity benefits, medical treatment allowance, temporary invalidity benefits and temporary invalidity allowance;

b) when on maternity leave; and

c) when receiving child-care benefits or child-care allowance.

(2) Service time shall also include periods of hospitalization if admitted during the service time or within thirty days subsequently. One year additional service time (two years in connection with tuberculosis) may be recognized on the grounds of hospitalization after the insurance was terminated or after any other service time acquired on other grounds.

It must also be attached:

  • those judicial decisions which were made within 6 months in case of the orphan’s up to 50 percent disability or rehabilitation benefit in connection with his/her health status. In lack of this, the orphan’s documents which are related to the health status of the orphan, if the orphan requesting orphan’s benefits relating to he/she is a person with reduced ability to work.
  • the school attendance certification in case of the orphan’s over sixteen years of age.

The proof of claim is valid with signature only, in lack of this, it will not be considered.

The place of the filing of the proof of claim.

Source: pexel.com

As of 1 November 2017, the Central Administration of National Pension Insurance (ONYF) merged into the Hungarian State Treasury (MÁK). The proof of claim shall be submitted or sent to the competent Pension Payment Directorate of the Hungarian National Treasury or pension insurance administration agencies of the claimant’s (applicant’s) place of residence.

The pension insurance administration agencies.

The Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits Sec. 1 lists the pension insurance administration agencies:

(1) The Government appoints the following bodies to function as pension insurance administration agencies:

a) the district (Budapest district) offices provided for in Annex 1 of Budapest and county government agencies (hereinafter referred to as “district office”);

b) Budapest and county government agencies, with the exception of the Pest County Government Agency (hereinafter referred to as “government agency”);

c) the Magyar Államkincstár (Hungarian State Treasury) (hereinafter referred to as “Treasury”) Nyugdíjfolyósító Igazgatóság (Pension Payment Directorate) (hereinafter referred to as “Pension Payment Directorate”);

d) the central body of the Treasury (hereinafter referred to as “Head Office”).

(2) The Government appoints the Pension Payment Administration to function as the pension pay-out agency.

(3) The Government delegates the Head Office to function as the central pension insurance agency.

According to the Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits Sec. 2 (1) the district offices shall function as a general pension assessment bodies. Unless otherwise provided for by law, the competence of general pension assessment bodies shall cover the areas specified in Annex 1.

District VIII Branch of the Government Agency of the City of Budapest acting as the general pension assessment body for the City of Budapest and the County of Pest, responsible for the City of Budapest and the County of Pest.

Annexes related to the proof of claimant.

The Annex 3 of the Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits comprise the applicable percentage of calculating for dependent’s benefits the dependent’s benefits.

The Annex 4 of the Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits comprise the rules which are related to the data content of the form of the claim.

The current jurisdiction.

Unified Judicial Decision No. 2011. 2354 The claim of pension will not be expired, the lost of the right to the claim is not the legal consequence of the  late enforcement nor the service dependent’s (retirement) benefits.

Curia Decision No. Mfv. 10.789/2016/14. The determining of six month retrospective claim for benefits shall be applicable only, if the claimant make statement relating to this during the official procedure.

Metropolitan Administrative and Labor Court Decision No. M.662/2012/8. During the started lawsuit against the administrative decision (resolution) on the dependent’s benefits establishes the judgement of the court, if the essential ascertainment’s of the forensic medical expert’s reports are in correspondence with each other during the official procedure.

Metropolitan Administrative and Labor Court Decision No. M.408/2011/15. If the view of point of the forensic (medical) expert diverge well reasonable from the expert’s opinion which were made in the official procedure, the secondment of the newer expert is unnecessary (for example: it is accurately marked that which disease was not taken into account during the official procedure).

Here is some information about the reorganization of the Hungarian social security system. This document was made by the Hungarian State Treasury.

Sources.

Commentary on Act LXXXI of 1997 on Social Security Pension Benefits, Edited by Áron Pánczél. Budapest, Wolters Kluwer (Nagykommentár a társadalombiztosítási nyugellátásról szóló 1997. évi LXXXI. törvényhez – Szerkesztette: Pánczél Áron. Budapest, Wolters Kluwer – Jogtár)

Act LXXXI of 1997 on Social Security Pension Benefits

Act LXXX of 1997 on the Eligibility for Social Security Benefits and Private Pensions and the Funding of These Services

Act CL of 2016 on General Public Administration Procedures

Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits

This article is written about a particular kind of dependent’s benefits, the orphan’s benefits. This legal institution is very special, therefore it is regulated by more laws and decrees.

The article consists of two parts: the first parts contains the basic notions and the features of the orphan’s benefits. The second parts discuss the enforcement of claims of the orphan’s benefits and its procedural regulations.

Some current judicial practices were listed at the end of both parts of the article in connection with this topic.

The concepts of dependent benefits.

The dependent benefits shall mean regular payments of money calculated upon the income of the insured person (formerly insured person), or his relative, consistent with his service time.

The dependent’s benefits are provided to the insured person under the frame of the social security pension system.

The service time.

The concept of the service time is determined by the Act LXXXI of 1997 on Social Security Pension Benefits (hereinafter: Social Security Pension Benefits Act or SSPA) Sec. 4 (1) point h).

According to the SSPA Sec 4 (1) point h) service time shall mean the periods when the insured person was required to pay pension contributions, or paid pension contributions under a voluntary arrangement. The periods of service time free from any obligation of payment of pension contributions shall be laid down in specific other legislation.

The family member required and capable to provide maintenance.

According to the SSPA Sec 4 (1) point i) the family member required and capable to provide maintenance shall mean a person legally required to provide maintenance to an orphan’s pension creditor and/or a parent’s benefit creditor – consistent with the chain of maintenance obligation – before the deceased rightholder 

ia) who was ordered by court to provide maintenance to the orphan’s pension creditor and/or the parent’s benefit creditor as due, or 

ib) whose per capita income in the family exceeds two and a half times the mandatory minimum amount of full old-age pension benefits according to Act III of 1993 on Social Administration and Social Welfare Benefits, except if not required – by decision of the court – to provide maintenance to the orphan’s pension creditor and/or parent’s benefit creditor, with the proviso that a person whose whereabouts is unknown shall be considered incapable to provide maintenance; 

The concepts of orphan’s pension.

Pursuant to the SSPA Sec. 4 (1) point f) orphan’s pension shall mean the benefits paid to the children or adopted children of a deceased pensioner or of a person with pension rights who does not receive pension, or to their foster children, brothers and sisters or grandchildren subject to specific conditions.

The SPA Sec. 6 (2) list kinds of dependent’s benefits which are provided under the frame of the social security pension system. These are the follows:

a) widow’s pension;

b) orphan’s pension;

c) parent’s benefits;

d) accident-related dependent’s benefits;

e) widow’s benefits.

The requirements of entitlement.

The requirements of entitlement of the dependent’s benefits are regulated by the SSPA Sec. 46, Sec. 54 (1)-(3) and Sec. 55 (1)-(5).

Regarding to the entitlement, the SSPA Sec. 54 (1) refers to the contents of the SSPA Sec. 46. Pursuant to this provision, orphan’s pension shall be available to any children – born in wedlock or in a domestic partnership and raised together in the same household -, whose parent satisfies the requirements set out in Section 46 applicable to the deceased spouse.

The SSPA Sec. 46 ascertains the following:

(1) Widow’s pension shall be available to a person whose spouse died while drawing old-age pension or whose spouse died: 

a) before reaching 22 years of age and 

aa) who obtained service time within 180 days upon the conclusion of his/her studies, or 

ab) a total of at least 2 years of service time; 

b) after reaching 22 and before reaching 25 years of age, and acquired at least 4 years of service time; 

c) after reaching 25 and before reaching 30 years of age, and acquired at least 6 years of service time; 

d) after reaching 30 and before reaching 35 years of age, and acquired at least 8 years of service time; 

e) after reaching 35 and before reaching 45 years of age, and acquired at least 10 years of service time; 

f) after reaching 45 years of age, and acquired at least 15 years of service time.

(2) Furthermore, any person whose spouse did not acquire the service time prescribed in Subsection (1) shall be entitled to widow’s pension if his/her spouse acquired to service time prescribed for the lower age group and if his/her service time is not interrupted subsequently for any period of thirty days of more until the time of his/her death. This thirty-day period shall not include any period of incapacity to work. 

According to the SSPA Sec. 46 (3) the following periods shall be acknowledged as service time for the purpose of eligibility for widow’s pension: the period during which the deceased rightholder had been drawing invalidity benefits, accident-related disability benefits or invalidity allowance.

Pursuant to the SSPA Sec. 54 (2), orphan’s pension shall not be available to an adopted child by way of his/her biological parent, except if the child was adopted by the spouse of his/her biological parent. The Subsection 3 states that, orphan’s pension shall be available to a brother or sister, or a grandchild (including great-grandchildren and great-great-grandchildren) if he/she was supported by the deceased person in his own home, and if the child does not have any relative who is able and willing to support him/her.

By the way it is good to know that the Payment of orphan’s pension to the children referred to in Subsection (3) of Section 54 of the SSPA shall be suspended – from the first day of the month following the date of delivery of the relevant resolution of the first instance – if the relative liable to provide support becomes able to support them. [Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits Sec. 64 (1)]

Source: pexel.com

The period (availability) of orphan’s benefits.

The period (availability) is determined by the SSPA Sec. 55 (1)-(5).

Orphan’s pension shall be available – if the conditions for entitlement are satisfied – as of the day of the death of the deceased person until the child’s sixteenth birthday.

If the child is pursuing a full-time course of study or participates in full-time education and training in a higher education institution, orphan’s pension shall be provided for the duration of studies, up to the child’s twenty-fifth birthday. If the child’s ability to work has diminished within the period of entitlement, orphan’s pension shall be provided for these periods independent of age.

It is very important if the orphan is older than twenty-five years old at the death of the person referred to in Section 54, the orphan’s benefit can not be granted for him/her. The earlier granted benefit – depending on the full-time course of study – will ceased. There is a an exception when the orphan is supported in orphan’s pension and he/she was a person with reduced ability to work at the time when he/she 25 years old.

In this case the orphan will be supported with the orphan’s benefit until he/she is qualified as a person with reduced ability to work. It is very important to know that if the orphan’s benefit is terminated due to health improvement, it can not be determined above the age of 25 again even though if the orphans health begins to deteriorate later.

The Head Office (the central body of the Hungarian State Treasury; hereinafter: Treasury) can ascertain special benefit in exceptional case, equity if the orphan at the death of deceased rightholder, is older than the age of 25 and he/she is pursuing a full-time course of study or participates in full-time education and training. The Head Office also extend the right to special orphan’s benefits in its power of equity regarding to the former death of deceased rightholder and the studies of the child, if the entitlement of him/her was existed before the age of 25 of the orphan.

If the child’s ability to work has diminished within the period of entitlement, orphan’s pension shall be provided for these period independent of age.

The child or his/her parent’s marriage shall have no bearing on entitlement to orphan’s pension, nor if the child is adopted.

On the grounds of schooling entitlement to orphan’s pension shall be granted to a child who: 

  • pursues studies as a student with individual study arrangement due to an illness or physical or mental handicap, pregnancy, childbirth or to caring for his or her child under 3 years of age; 
  • is below the age of 25 and pursues studies within the framework of adult education, provided that such adult education is provided by means other than distance education, and the weekly number of classes reaches seven in the average.

It is very important to note that on the grounds of schooling, orphan’s pension shall be granted until the end of the last month of studies, including the period of summer school-break as well. The legislator intends to use this rules to help the parent and the child in need of care in the same household making the coverage of child-raising costs easier during the child studies.

The SSPA also includes those rules which are in connection with the orphan studies. This rules describes the verification process of the entitlement of orphan’s benefits in connection with the orphans studies.

In connection with orphans studying in Hungary, the body operating the public education information system or the higher education information system shall verify the commencement and existence of the student relationship and the estimated time for the conclusion of studies at the request of the pension insurance administration agency, and shall ex officio verify the suspension or termination of student relationship, indicating the student’s name and social security identification code and the length of the time of suspension or termination. So, in this case, the claimant (applicant) has no individual action.

In the case of orphans studying abroad, school attendance shall be verified once a year if attending a secondary school and semi-annually if attending an institution of higher learning within one month from the date of commencement of studies.

Where the studies of a student of a secondary school or institution of higher education are suspended due to the student’s illness or giving birth to a child, this shall have no bearing on entitlement to orphan’s pension.

Source: pexel.com

The amount of benefits.

The amount of the orphan’s benefits are determined by the SSPA Sec. 56 (1)-(4).

Orphan’s pension shall be thirty per cent per child of the old-age pension benefits to which the deceased person had been or should have been entitled at the time of his/her death. The Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits Sec. 64/D states the following: the mandatory minimum amount of orphan’s pension assessed for periods between 31 December 2007 and 1 January 2020 shall be 24,250 forints per month.

Pursuant to the SSPA Sec. 59 if there are several orphan’s, they each receive the amount due under the law. In contrary with the widow’s pension, the orphan’s benefit will not be shared. [SSPA Sec. 51, 59]

Summarize the above-mentioned facts, the mandatory minimum amount of orphan’s pension shall be thirty per cent per child of the old-age pension benefits but at least the aforementioned 24,250 forints per month.

Sixty per cent of the pension and benefits referred to in Subsection (1) shall be paid as orphan’s pension to a child: 

a) if both parents have died,

b) whose parent’s ability to work has diminished.

If a child is entitled to orphan’s pension in connection with both parents, the orphan’s pension that is more favorable shall be paid.

Person with reduced ability to work.

Pursuant to the SSPA Sec. 4 (1) point k) person with reduced ability to work shall mean a person whose health had deteriorated by up to 50 per cent. The rules of person with reduced ability to work are determined by the Act on the Benefits Provided to Workers with Disabilities and on the Amendment of Certain Acts (Act CXCI of 2011).

The current jurisdiction.

Judicial Decision No. 17/2000. (V.26.) It is not unconstitutional that the entitlement of the orphan’s benefit is bound to the service time. On the one hand the State is not obligated to provide solution of social security for every single life situation. The Social Security Pension System is only one of the type of the subsistence benefits. On the other hand the orphan’s benefit is ground on the entitlement to old-age pension of the deceased rightholder, it depends on, therefore the orphan’s of those who acquired the necessary service time and those without it, can not be taken account to be a homogeneous group. So, it can not to be talked about discrimination too. 

Decision No. 867/B/1997. (Constitutional Court) It is not unconstitutional that the orphan’s benefit – if the orphan is not a person with reduced ability to work – will terminated at the age of 25 because the provisions of child protection constitutional proclamation does not create individual entitlement.

Judicial Decision No. 2004. 1065. There is no orphan’s benefit for person with reduced ability to work, if he/she is older than the age of 25 at the time of death of the rightholder.

Metropolitan Administrative and Labor Court Decision M.3325/2006/10. It is not chargeable taking the orphan’s benefit for the orphan, if he/she can verify that he/she made the notification and even so the Nyufig (Pension Payment Directorate) has not terminated the transfer.

Sources.

Commentary on Act LXXXI of 1997 on Social Security Pension Benefits, Edited by Áron Pánczél. Budapest, Wolters Kluwer (Nagykommentár a társadalombiztosítási nyugellátásról szóló 1997. évi LXXXI. törvényhez – Szerkesztette: Pánczél Áron. Budapest, Wolters Kluwer – Jogtár)

Act LXXXI of 1997 on Social Security Pension Benefits

Act LXXX of 1997 on the Eligibility for Social Security Benefits and Private Pensions and the Funding of These Services

Act CL of 2016 on General Public Administration Procedures

Government Decree 168/1997 (X.6.) Korm. on implementation of Act LXXXI of 1997 on Social Security Pension Benefits