Following infringement proceedings and an action for failure to fulfil obligations, which it upheld in full, the Court of Justice of the European Union, sitting in plenary session, has for the first time found that a Member State has infringed Article 2 TEU, in particular the values of respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities.

Through ‘Act LXXIX of 2021 introducing stricter measures against paedophile offenders and amending certain laws to protect minors’, Hungary introduced and amended various national legislative acts with the aim of protecting minors. The reform in question provided for the introduction of bans and/or restrictions on access to audiovisual and advertising content likely to depict or promote gender reassignment, homosexuality and the distinction between sex assigned at birth and personal identity.

The European Commission has initiated infringement proceedings against Hungary and, following an action for failure to fulfil obligations, the Court of Justice has ruled that the Member State has infringed European Union law: primary and secondary legislation relating to services in the internal market, as well as the Charter of Fundamental Rights of the European Union, Article 2 TEU and the GDPR.

Of particular significance in this ruling is pluralism, as a founding principle of the European Union which underlies its legal framework.

A breach of the freedom to provide services was found: the Member State has a margin of discretion in this area, particularly in the absence of harmonised rules on the matter. However, this discretion must be exercised without breaching the Charter and, in particular, the prohibition of discrimination on grounds of sex and sexual orientation, pursuant to Article 21(1). Conversely, legislation prohibiting any audiovisual or advertising content capable of representing or promoting identities other than cisgender and heteronormative ones, even if justified by the protection of the best interests of the child, instead reveals a marked preference for certain identities and sexual orientations to the detriment and stigmatisation of others.

With such legislation, the Member State fails to protect the interests of children, but instead interferes in private and family life, curtails freedom of expression and information, marginalises non-cisgender people or non-binary identities, and – by virtue of the very wording of the law – associates them with paedophile criminality, thereby reinforcing hateful behaviour. Groups of people who are an integral part of society are isolated and discriminated against; they are identified as a threat, and the intention is to apply special legal treatment to maintain or reinforce their social invisibility. Such legislation therefore constitutes an unjustified and serious interference with the exercise of the fundamental rights protected by the Charter and is incompatible with a society, such as that represented by the European Union, founded on pluralism. Minors can be adequately protected by measures aimed at restricting access to programmes unsuitable for their age, but this cannot and must not result in discrimination based on sex and sexual orientation.

Pluralism is also significant in this ruling for other reasons.

A violation of Article 11 of the Charter is established because it restricts the right to communicate information and, by extension, ‘pluralism in the production and programming of information within the Union’ not only for minors but also in relation to the general public.

Furthermore, a breach of Article 2 TEU by a Member State has been established for the first time, given that the Hungarian law is in direct conflict with the common legal order. The purported protection of national identity, through a reform aimed at restricting audiovisual and advertising content such as that referred to, cannot go so far as to contradict the common legal order, which is based on pluralism.

 

(Comment by Stefania Pia Perrino)