By adopting a law in 2021 prohibiting minors from accessing content representing LGBTIQ+ people, Hungary has violated the fundamental values (Article 2 TEU) on which the European Union is founded, ruled the Court of Justice of the EU (CJEU) in a judgment handed down on Tuesday 21 April (case C-769/22), a week after the election defeat of Hungarian Prime Minister Viktor Orbán.
On the basis of the Opinion of the Advocate General (see EUROPE 13654/26), the CJEU finds that the action brought by the European Commission in July 2022 (see EUROPE 12994/1) is well founded in its entirety.
The European Court of Justice has confirmed that a Member State may justify restrictions on the freedom to provide certain services by promoting the best interests of the child or by safeguarding the right of parents to ensure the education and teaching of their children in accordance with their religious or philosophical convictions, which are guaranteed by the EU Charter of Fundamental Rights of the European Union (Articles 14 and 24). Furthermore, in the absence of EU-wide harmonisation rules, Member States have a margin of discretion to define what content is likely to harm the physical and mental development of minors.
However, the Court is of the opinion that this margin of assessment must be exercised in line with the Charter, in particular the prohibition on discrimination based on sex or sexual orientation (Article 21).
In the present instance, it considers that this is not the case. Hungarian law is based on the premise that any representation of LGBTIQ+ people, regardless of its specific content, is likely to harm the best interests of the child. The CJEU argues that such an approach reveals a preference for certain identities and sexual orientations to the detriment of others, which are consequently stigmatised. And that this is incompatible with the requirements of a pluralistic society that prohibit discrimination on the grounds of sex and sexual orientation.
The Court is therefore of the view that the Hungarian restrictions are in no way justified by the objective of promoting the best interests of the child. In their view, minors can be adequately protected against programmes that are not age-appropriate, without there being direct discrimination on the grounds of sex and sexual orientation.
Secondly, the European Court found a particularly serious interference with several fundamental rights protected by the Charter, namely, in addition to the prohibition of discrimination on grounds of sex and sexual orientation, respect for private and family life (Article 7) and freedom of expression and information (Article 11).
Finally, for the first time, the Court found a direct infringement of Article 2 TEU, which sets out the fundamental values of the EU that are common to all Member States. By banning the representation of LGBTQ+ people, Hungarian law introduces discriminatory measures that undermine the values of respect for human dignity, equality and respect for human rights, including the rights of people belonging to minorities.
Consequently, this law is contrary to the very identity of the EU as a common legal order in a society characterised by pluralism. Hungary, the Court concludes, cannot validly rely on its national identity to justify the adoption of a law that fails to respect the aforementioned values.
Read the judgment of the Court of Justice: https://aeur.eu/f/lmt
This judgment was favourably received by the European Commission and the European Parliament.
The European Commissioner for Equality, Hadja Lahbib, said: “This decision reiterates something that should never have been disputed: in our Union, there is no place for discrimination or stigmatisation of LGBTIQ+ people”. She is convinced that the Court’s judgment marks “an important step forward for equality and the rule of law in Europe”.
MEP Tineke Strik (Greens/EFA, Dutch) called on Péter Magyar’s future government to “ensure that the implementation of this judgment for the genuine and full restoration of the rights of this community is front and centre in its plans to reinstate the rule of law” in Hungary. (Original version in French by Mathieu Bion)