The Court of Justice of the European Union has ruled that Hungary’s 2021 law restricting access by minors to content portraying homosexuality or gender reassignment breaches EU internal-market rules, fundamental rights protections, Article 2 TEU and elements of EU data-protection law.
The Court of Justice of the European Union on 21 April ruled in Commission v Hungary that Hungary, by adopting its 2021 law on the protection of children, acted in breach of EU law on several separate grounds. The court said the contested measures infringed rules on the internal market, violated rights protected by the Charter of Fundamental Rights, breached Article 2 of the Treaty on European Union and also conflicted with parts of the GDPR framework.
The case concerned Law No LXXIX of 2021, under which Hungary amended several national laws in the name of child protection. In practical terms, the court said, the law prohibited or restricted access to content in areas including the audiovisual and advertising sectors where that content portrayed or promoted “deviation from the self-identity corresponding to the sex assigned at birth”, gender reassignment or homosexuality. The Commission had decided in July 2022 to refer Hungary to the Court of Justice, and the action was lodged in December 2022.
In its judgment, the court found that the Hungarian provisions restricted the freedom to provide and receive services, protected both by the Treaties and by EU secondary legislation including the e-Commerce Directive, the Services Directive and the Audiovisual Media Services Directive. It accepted that member states may, in principle, invoke child protection and parental rights in education as legitimate objectives. But it held that any such restrictions must still comply with the Charter, including the prohibition on discrimination based on sex or sexual orientation. On that point, the court concluded that the Hungarian approach failed.
The court’s reasoning went further than a narrow internal-market finding. It said the law was based on the premise that any portrayal or promotion of homosexuality or gender reassignment was inherently harmful to minors. That, the judgment said, revealed a preference for certain identities and sexual orientations over others and amounted to stigmatisation incompatible with a pluralist society governed by non-discrimination principles. The court added that minors can be protected from content that is not age-appropriate without resorting to direct discrimination on grounds of sex or sexual orientation.
The judges also found what they described as a particularly serious interference with several Charter rights, including respect for private and family life, freedom of expression and information, and the prohibition on discrimination. In the court’s view, the Hungarian legislation stigmatised and marginalised non-cisgender and non-heterosexual persons by presenting them as detrimental to the physical, mental and moral development of minors solely on the basis of gender identity or sexual orientation. It further noted that the title of the amending law associated those persons with people convicted of paedophilia, which the court said was liable to intensify stigmatisation and encourage hateful conduct.
The ruling is also notable because the court found, for the first time in an infringement action against a member state, a separate breach of Article 2 TEU, which sets out the Union’s founding values. According to the press release accompanying the judgment, the court held that the contested provisions formed part of a coordinated series of discriminatory measures that were manifestly and particularly seriously at odds with the values of human dignity, equality and respect for human rights, including the rights of minorities. It said Hungary could not rely on national identity to justify legislation contrary to those values.
On data protection, the court also found that Hungary had breached the GDPR by widening access to criminal-record data concerning offences against the sexual freedom or morality of children without defining with sufficient precision who could access the data and under what substantive conditions. In the court’s view, the national rules did not provide safeguards adequate to protect the rights and freedoms of the persons concerned.
Legally, the judgment means Hungary must now comply without delay. Under standard infringement procedure, if the Commission considers that the ruling is not implemented, it may return to the court and seek financial penalties. Politically, the judgment is likely to feed directly into the broader rule-of-law dispute between Budapest and the EU institutions, but the text delivered on 21 April is first and foremost a legal ruling: a finding that the 2021 law breaches multiple layers of EU law and cannot be justified on the grounds advanced by the Hungarian government.
