(Adnkronos) – The 2021 Hungarian law prohibiting the dissemination of Lgbt+ content violates EU law on multiple levels. This is the verdict of the European Court of Justice, which found the first violation of Article 2 of the Treaty on the EU, which lists the values on which the Union is founded, by a Member State. In addition to this, the law enacted by the then Viktor Orban government also violates primary and secondary law relating to services in the internal market, the Charter of Fundamental Rights of the EU, and the General Data Protection Regulation (Gdpr).
The decision of the Court of Justice comes in response to an infringement action brought by the European Commission regarding the law in question, a series of amendments to Hungarian law which, according to the title assigned by the government, were aimed at establishing stricter measures against pedophiles and for the protection of minors. In essence, these amendments prohibit or restrict access to content, including in audiovisual or advertising sectors, that portrays or promotes homosexuality, sex change, or deviation from the identity associated with sex at birth, as the body emphasizes in a statement. The Luxembourg Court therefore found that the European executive’s appeal “is well-founded with regard to all the grounds adduced,” those for which Budapest was found to be in violation of EU law.
Firstly, these amendments “violate the freedom to provide and receive services,” given that the changes made by the Hungarian government, in fact, “entail restrictions on this freedom.” The Luxembourg Court admits that such restrictions may be justified by the promotion of the child’s best interest or the need to safeguard parents’ right to ensure the education they deem appropriate, also given the wide margin of discretion available to Member States in the absence of harmonizing EU rules in defining content that may harm the physical, mental, or moral development of minors. However, the body also notes that this margin of discretion “must be exercised in accordance with the Charter, in particular with the prohibition of discrimination based on sex or sexual orientation” and “finds that this is not the situation in the present case.”
As the verdict explains, Hungarian law is based on the premise that any representation or promotion of Lgbt+ content, regardless of specific content, is such as to harm the best interest of the child: an approach that “reveals a preference for certain sexual identities and orientations to the detriment of others, which are thereby stigmatized, which is incompatible with the requirements arising, in a pluralistic society, from the prohibition of discrimination based on sex or sexual orientation.” Furthermore, the restrictions in question “do not appear in any case justified, inter alia, by the objective of promoting the best interest of the child,” given that children can be “adequately protected from age-inappropriate programs without there being direct discrimination in this regard.”
Secondly, the amendments provided for by Hungarian law interfere in a “particularly serious” way with several fundamental rights protected by the Charter, namely the prohibition of discrimination based on sex or sexual orientation, respect for private and family life, and freedom of expression and information, the Court’s statement continues. In particular, the law “stigmatizes and marginalizes non-cisgender individuals, including transgender people, or non-heterosexual individuals as harmful to the physical, mental, and moral development of minors, solely on the basis of their gender identity or sexual orientation.” Furthermore, the title of the law associates such individuals with those convicted of pedophilia, which increases their stigmatization and encourages hateful behavior towards them.
“The interferences in question undermine the essence of the fundamental rights mentioned above and therefore cannot be justified by the objectives invoked by Hungary, namely the promotion of the child’s best interest or the right of parents to ensure the education and teaching of their children in accordance with their religious, philosophical, and pedagogical convictions,” the Court emphasizes. In the present case, it continues, Budapest has also violated the right to human dignity, treating the Lgbt+ community “as a threat to society deserving of special legal treatment, solely on the basis of their gender identity or sexual orientation,” thereby violating their dignity.
Third, the Court finds a violation of Article 2 of the Treaties, noting that aspects of the law targeting content portraying or promoting Lgbt+ individuals “constitute a coordinated series of discriminatory measures” that violate their rights “in a manifest and particularly serious manner,” as well as the values of respect for human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities. “Consequently, this law is contrary to the very identity of the Union as a common legal order in a society where pluralism prevails. Hungary cannot validly invoke its national identity as a justification for adopting a law that violates the aforementioned values,” the statement highlights.
The fourth violation found by the Court is that of the Gdpr, as well as the right to data protection guaranteed by the Charter, insofar as Budapest amended the law on the criminal record system to expand access to information recorded in the system relating to persons convicted of pedophilia. Such access may be legitimate in certain circumstances, the body notes, but in essence, the law in question “does not provide a sufficiently precise definition either of the persons authorized to access criminal record data, nor of the substantial access conditions necessary to offer adequate guarantees for the rights and freedoms of the data subjects.”
