CJEU Condemns Hungary’s Anti-LGBTQ Laws in Landmark Ruling.

Photo by lmaresz on Pixabay.com

On April 21, the Court of Justice of the European Union (CJEU) issued its judgement of the Hungarian anti-LGBTQ laws case (case C-769/22 Commission v Hungary), ruling that these laws violate the fundamental EU values set out in Article 2 of the Treaty on the European Union (TEU).

In 2021, Hungarian ex-Prime Minister Viktor Orbán’s government introduced “anti-LGBTQ” laws which banned the “promotion of homosexuality” or “gender change” to minors of age. Orbán’s government justified these acts by using “child protection” as its main argument, claiming that certain contents may “confuse” children’s development of their values and of their image. Orbán’s opposition did not hesitate to quickly call out these laws, describing them as “incompatible with the fundamental values of European democratic societies”.

In practice, these laws aim at stigmatizing LGBTQ people, foster discrimination based on sexual orientation and gender identity, and limit freedom of speech in Hungary. Under these laws, the simple act of showcasing LGBTQ individuals or themes on TV or in educational materials is banned. These Hungarian laws are not unsimilar to Russia’s 2013 “anti-gay propaganda” laws, which also fueled hostility towards the LGBTQ community.

At the time of their creation, the European Commission did not wait long before bringing Hungary to the CJEU, effectively launching an infringement procedure in July 2021 against the country, with the support of 16 EU Member States. The European Commission considered Hungary’s laws to be infringing the very founding EU values found in Article 2 TEU in a systemic, intentional, and widespread way, therefore claiming that the country had failed to fulfill its EU Member State obligations.

Almost 5 years later, the CJEU legally backed the European Commission’s position by ruling that “that law is contrary to the very identity of the Union as a common legal order in a society in which pluralism prevails”. The CJEU recognised that Hungary was violating rights guaranteed by several legal provisions such as Article 21(1) of the Charter of Fundamental Rights of the European Union on the prohibition on discrimination based on sex or sexual orientation, the General Data Protection Regulation, and, most importantly, Article 2 TEU.

In fact, Article 2 TEU’s values, upon which the EU is founded and which are common to all Member States, are considered to be violated as these laws breach the “respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities”. This ruling is of utmost significance as it represents the very first instance of the CJEU finding a Member State guilty of breaking  EU law based exclusively on breaches of Article 2 TEU. 

These laws are also considered to associate LGBTQ individuals with persons convicted of paedophilia and to paint LGBTQ individuals as a threat to children simply because of their identity, encouraging systemic hate and discrimination against them. Consequently, the CJEU left no chance for Hungary to justify these restrictions in a valid way, namely by relying on arguments of national identity or child protection.

This landmark ruling inscribes itself in a new Hungarian political context after Péter Magyar became the country’s new Prime Minister last week, replacing Viktor Orbán after 16 years in power. Magyar, who stayed relatively quiet on LGBTQ issues during his electoral campaign, did make his intentions of improving Hungary’s relationship and position in the European Union clear, affirming his pro-European views for the country. Therefore, although Budapest could still appeal the CJEU’s ruling, it is not nonsensical to think that Magyar will accept it as it is. Complying with the ruling could also help the new Hungarian government to unblock the €20 billion of EU funds that have been frozen by the EU for issues related to the rule of law, judicial independence, and to these anti-LGBTQ laws.

This ruling opens the door for potential future cases of breaches of Article 2 TEU values, as the CJEU, the highest judicial instance of the EU, ensures uniform interpretation and application of EU law. EU Commissioner for Equality, Preparedness, and Crisis Management Hadja Lahbib also praised the ruling, stating that “there is no place for discrimination or stigmatisation in our Union”.

written by Antonio Colilli