According to a Tuesday ruling by the Court of Justice of the European Union, the Hungarian state has violated its EU legal obligations by passing the 2021 law on "laying down stricter measures in respect of persons convicted of paedophilia and amending certain laws adopted in the interests of the protection of children’. Among other things, the Hungarian legislation is in conflict with the EU’s legally binding Charter of Fundamental Rights and the sections of the founding treaties that enshrine EU values.
The European Commission launched infringement proceedings in 2021 over the law which was amended to include anti-LGBTQ+ provisions just prior to its adoption. In cases of late or incorrect application or a deliberate violation of EU law, the procedure begins with two rounds of correspondence, but this did not yield results here, so the EU body filed a lawsuit with the EU Court of Justice in December 2022.
The European Commission requested that it be established that the Hungarian authorities had violated their obligations under EU law. According to the Commission, they did so on three levels: primary and secondary law regarding the internal market for services, the General Data Protection Regulation, several fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, and the article in the EU’s quasi-constitution—the founding treaties—which sets forth the EU’s fundamental values.
Sixteen of the other 26 Member State governments joined the lawsuit. The Advocate General’s Opinion, which generally precedes the judgment, recommended last year that the Court rule that the action is justified on all grounds and that the Court also find a separate violation of the article on fundamental values.
According to the court’s press release, the action is well founded as regards all the pleas in law relied on.
Member State authorities do have the discretion to determine what content—particularly audiovisual content—may be harmful to the development of minors, but such discretion must respect the prohibition of discrimination based on sex and sexual orientation. According to the Court, “this is not the case here”; and stigmatization is “incompatible with the requirements arising from the prohibition of discrimination based on gender and sexual orientation in a pluralistic society,” and the adequate protection of minors can be ensured without such discrimination.
The adopted amendments “constitute a particularly serious interference” with numerous rights protected by the Charter of Fundamental Rights, such as the right to privacy and family life. It stigmatizes and marginalizes non-cisgender persons, regarding them "as being detrimental to the physical, mental and moral development of minors solely on the basis of their gender identity or sexual orientation".
The title of the amendment links them to pedophile offenders, which could reinforce this stigma and incite hateful behavior toward them.”
Furthermore, aspects of the amendment contested by the Commission treat a group of persons forming an integral part of a society in which pluralism prevails as a threat to society meriting special legal treatment, solely on the basis of their gender identity or sexual orientation. The offensive and stigmatising nature of the amending law results in such persons’ social ‘invisibility’ being established, maintained, or reinforced, which violates their dignity".
This is the first time that "the court has found a separate infringement of Article 2 TEU, which lists the values on which the Union is founded and which are common to all the Member States.
The amendments in question “constitute a coordinated series of discriminatory measures which are in breach, in a way that is both manifest and particularly serious, of the rights of non-cisgender persons – including transgender persons – or non-heterosexual persons, as well as the values of respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities.”
According to the court, the law is contrary to the EU’s own identity, so the Hungarian government “cannot successfully invoke its national identity to justify the adoption of the law.”
If the Hungarian government does not amend the legislation, another lawsuit may follow—this time involving the imposition of a fine. Regardless of whether it pays the fine or not, in the latter case, the amount would be deducted from EU grant payments along with penalty interest, as was the case with the dispute over migrants' rights.
On Tuesday, Paula Pinho, the European Commission’s chief spokesperson called the ruling, which affirmed the Commission's position a milestone.
The fact that the court issued a separate ruling on the violation of EU values could be significant with regard to the "Article 7" procedure designed to ensure compliance with those values. Currently, such a procedure is underway only against the Hungarian authorities, but since its initiation in 2018, there has been no progress in the matter. As the next step, at least four-fifths of the member states’ ministers could determine that the fundamental values have been violated and vote on recommendations; alternatively, one-third of them or the European Commission could immediately move the procedure to the next stage. In May, the leaders of twenty member states called for a review of Hungary's anti-LGBTIQ measures. The Hungarian government was heard that very same day in the Article 7 procedure, in the next stage of which certain rights arising from EU membership—such as the government’s voting rights in the Council of Ministers—could be suspended. The procedure was initiated by the European Parliament (EP), so based on the only previous example, the EP itself would also be able to terminate it if it deemed it was no longer necessary.
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