Brussels – Sixteen consecutive years in government cannot be wiped away with a stroke of a pen. And as a demonstration of the effort that will be required of the new Hungarian Prime Minister, Péter Magyar, to bring his country back onto the path of democracy and the rule of law following the end of the Viktor Orbán era, a ruling by the Court of Justice of the European Union (CJEU) was issued today (21 April) in which Budapest is held responsible for breaching several provisions of EU law. The subject of the ruling is the so-called anti-LGBTQI+ law, which the Orbán government approved in 2021 to restrict minors’ access to content – particularly audiovisual or advertising content – that depicts or promotes homosexuality, gender transition, and divergence from the personal identity corresponding to one’s sex at birth.
Formally adopted to “introduce tougher measures against pedophile offenders and protect minors,” the law had been challenged by the European Commission in 2023. With the support of the European Parliament and 15 Member States, the Commission had lodged an appeal with the Court, accusing Budapest of acting “in
breach of the primary and secondary law of the European Union relating to services in the internal market,
several rights
guaranteed by the Charter of Fundamental Rights of the European Union (“the Charter”), Article 2 TEU,
and, lastly, the
General Data Protection Regulation (GDPR).”
In today’s judgment, the Court upheld the Commission’s appeal in its entirety, finding it to be well-founded in respect of all the alleged infringements and ordering Budapest to repeal the measure.
Firstly, the Hungarian law appears to infringe the freedom to provide and receive services, as enshrined in both primary law (the EU’s founding treaties) and three different EU directives: the 2000 e-Commerce Directive, the 2006 Services Directive, and
the 2018 Audiovisual Media Services Directive. While recognizing the freedom of Member States to exercise a margin of discretion in determining which content may be harmful to the physical, mental, or moral development of minors, the Court ruled that this power must be exercised “in line with the Charter, in particular in line
with the prohibition on discrimination based on sex or sexual orientation guaranteed by Article 21.” A principle violated by the Hungarian law, the content of which reveals “a preference for certain sexual identities and orientations to the detriment of others, which are stigmatized as a result.”
According to the Luxembourg judges’ reasoning, in addition to Article 21, Budapest has also breached other provisions enshrined in the EU Charter of Fundamental Rights. In particular, the right to respect for private and family life (Article 7), freedom of expression and information (Article 11), and respect for human dignity (Article 1). According to the Court, those aspects of the law in question that “treat a group of people who are an integral part of a pluralist society as a threat to society, solely on the grounds of their gender identity or sexual orientation” are responsible for this latter violation. “The stigmatizing and offensive nature of the amending law,” the judgment continues, “results in
such persons’ social ‘invisibility’ being established, maintained, or reinforced, which violates their dignity.”
The third level of infringement identified by the Court is particularly significant, as this is the first time a Member State has been held responsible for breaching Article 2 of the TEU, which enshrines the fundamental values upon which the Union is founded. According to the judges, under this law, Hungary has effectively rendered meaningless principles such as respect for human dignity and equality as well as the protection of human rights, including those of persons belonging to minorities. Since Article 2 stipulates that these and other values must be shared by all Member States, the Court considers that “Hungary cannot invoke its national identity to justify the adoption of a law that violates the aforementioned values”.
Finally, there is a further set of EU rules that the Orban measure would have breached, namely those laid down in General data protection regulation (GDPR), which the EU adopted in 2018. In this case, the Court’s scrutiny focused on the provisions of the law aimed at extending access to the criminal records of those who have committed offenses against sexual freedom or sexual morality in relation to minors. “Hungarian legislation does not provide a sufficiently precise definition
either of the persons authorized to access criminal records data or of the substantive conditions for access necessary to
offer appropriate safeguards for the rights and freedoms of the persons whose data are concerned,” the Luxembourg judges explained.
While Orbán bears full responsibility for this ruling, it is now up to Magyar to remedy the situation. Under the procedure applicable to infringement proceedings, the Member State concerned is required to comply with the Court’s judgment “without delay” and, if this does not happen, the Commission may bring a further action and request the imposition of financial penalties.
A prospect that Magyar, intent as he is on securing a rapid unfreezing of the EU funds allocated to Hungary, seems determined to avoid at all costs. “Hungary wants to be a country where no one is discriminated against because they think differently or because they love someone who is different from the majority,“ the prime minister designate said even before receiving today’s verdict from Luxembourg.
English version by the Translation Service of Withub
