EU values, LGBTQI+ rights and the future of democracy in Hungary and beyond: On the wider significance of case C-769/22

 

Benedetta Lobina* and Esther Martínez**

* re:constitution fellow and lecturer at the UCD Sutherland School of Law

** Co-founder and director of RECLAIM, a human rights NGO that campaigned for Member States to join in the proceedings in this case against Hungary

Photo credit: Budapest Pride march 2025, photo by bannedpride via Wikimedia Commons

 

In what has been a momentous 10 days for Hungary, after the elections that ousted Orban as Prime Minister after 16 years, the Court of Justice of the European Union delivered its much-anticipated judgment in the Hungarian “anti-LGBT propaganda” case. This case is remarkable for a number of reasons: for the first time, the Court found a breach of Article 2 TEU as a stand-alone plea in law; it expanded upon the protection of LGBTQI+ rights under the scope of EU law; and it saw an unprecedented number of interventions in support of the Commission, namely from the European Parliament and 16 Member States. Additionally, the timing of the Court’s delivery makes this the first opportunity for the new Magyar government to turn a new leaf for the country, after pledging its commitment to Europe during the course of the electoral campaign. In this blogpost, we will break down the wider significance of this judgment, beyond the undoubtedly groundbreaking use of Article 2 (and related doctrinal debates), especially with regards to the implementation of LGBTQI+-related CJEU judgments in Hungary and in the rest of the EU, and as pertains to what it signals for future litigation efforts.

Background of the case

The case was triggered by Orban’s far-reaching reforms seeking to restrict access to LGBTQI+ content (see here for an accessible breakdown). According to the arguments presented by the Commission (which the Court found well-founded in their entirety), the laws infringed a wide range of EU instruments related to the provision of services and the internal market, several rights protected by the Charter (Articles 1, 7, 11, 21), and lastly but most crucially, Article 2 TEU. This was the first use of Article 2 TEU on its own merits, underscoring the gravity of the departure from EU values witnessed in Hungary.

In its ruling, the CJEU sitting as a full court agreed with the Commission on all the pleas in law, specifically finding for the first time an infringement of Article 2 TEU, based on the nature of the legislative provisions at issue as a coordinated series of discriminatory measures, amounting to a manifest and particularly serious curtailment of LGBTQI+ rights. Consequently, it found that the Hungarian law is “contrary to the very identity of the Union as a common legal order in a society in which pluralism prevails” (counterarguments based on national identity notwithstanding).

This approach seems to crystallise a test whereby the sheer scale and seriousness of violations of relevant EU law – for instance several rights of the Charter embodying Article 2 TEU values – is enough to demonstrate a departure from shared values and therefore lead to a breach of Article 2 as a whole (para 548). Moreover, in order to remain within the limits and scope of EU law, the CJEU underlined “only manifest and particularly serious breaches of one or more values common to the Member States may give rise to a finding [of Article 2 violations, which are] incompatible with the very identity of the Union as a common legal order of a society in which pluralism prevails.” This reasoning would suggest that systemic stigmatisation of the LGBTQI+ community in and of itself (i.e. without any link to other provisions of the acquis) would give rise to an Article 2 breach – although in practice, the offending behaviour at issue is more than likely to also infringe upon several directives or regulations (as it did in this case), which may or may not raise questions over the logical soundness of the Court’s argument (see here and here). As such, this judgment sets the stage for stronger and more systemic infringement proceedings in the future, which can use multiple severe violations to prove a pattern that ultimately triggers an Article 2 violation.  

What happens next?

Such an emphatic decision is bound to have consequences beyond the black letter of the law, both in Hungary – especially after a dramatic shift in its political landscape – and in the rest of the Union. After winning a super majority in Parliament on a pro-EU platform, newly elected Prime Minister Peter Magyar will have his first chance to prove his commitment to EU values and the EU legal order by swiftly implementing this judgment. After being sworn in (presumably in the next month), repealing the offending legislation should be high up on his priority list.  Considering that the legislation at issue was blatantly lifted from Putin’s autocratic playbook, there would be a great amount of symbolic significance in using this as one of the first olive branches extended to Hungary’s European partners.

Whether this is likely to happen, however, remains up to question. Magyar was conspicuously silent on LGBTQI+ rights during the campaign and did not mention the issue in his victory speech, beyond pledging to rule for all Hungarians. When directly asked, he remained vague by simply emphasising that the general right to freedom of assembly should be enjoyed by everyone. At the same time, there are significant incentives for compliance which inspire hope for a change of course in Hungary on this front (including not only the somewhat distant threat of financial penalties for non-implementation, but also horizontal enabling conditions that tie LGBTQI+ rights restoration to €700M worth of frozen EU cohesion funds). Nonetheless, the offending legislation is just the tip of the iceberg when it comes to the state of LGBTQI+ rights in the country.

In the present judgment, the Court was particularly vocal, in its finding of several violations of the Charter, in stressing that laws of this kind reinforce stigmatisation of sexual identity and orientation in the public sphere, leading to hateful behaviour and fostering social “invisibility” for the marginalised communities targeted, contrary to the value of human dignity. Additionally, it also reaffirmed, in light of its previous jurisprudence, that MS have “a positive obligation to ensure respect for everyone’s right to develop a sexual identity” (at 447). Conversely, and in line with the aforementioned reasoning as to what constitutes a freestanding breach of Article 2 TEU, the Court ruled that the Hungarian law violates said Article because it seriously and manifestly breaches LGBTQI+ rights, such as respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities (at 556).

This is of huge importance, as it can serve as the basis to consider the broader body of anti-LGBTQI+ laws as contrary to EU law. Indeed, it is crucial to note that the case at hand is not comprehensive of all the restrictions imposed by the Orbán government on LGBTQI+ rights, and that efforts must therefore not be limited to repealing the legislation at issue. For instance, in 2018, the Fidesz government banned gender studies from state-accredited university programmes; in 2020 it banned legal gender recognition and adoptions for rainbow families. These measures, by the logic of the CJEU, fit within the pattern of persistent stigmatisation of non-cisgender and non-heterosexual persons, as well as breaching the principle of non-regression by lowering the protection of LGBTQI+ rights over time. Therefore, in order to truly comply with the spirit of the judgment, the new government should go further and repeal these discriminatory pieces of legislation as well.

Secondly, there is a long and growing list of landmark CJEU rulings that do not necessarily originate from Hungary, but are nonetheless not complied with by national authorities here, including judgments on freedom of movement and family life (Coman, V.M.A.; Cupriak-Trojan; Rzecznik Praw Obywatelskich), on legal recognition of transgender identity (Mirin; Deldits; Shipov), and on protection of human dignity for LGBTIQ+ people (Makeleio and Zougla). Without respect for these precedents, even after the repeal of the legislation at issue, the situation of LGBTQI+ people in Hungary would remain acutely precarious.

Thus, the Commission and Member States must insist on full implementation of all outstanding jurisprudence, in line with the principle of sincere cooperation, free movement, and the internal market. Generally speaking, the aforementioned line of jurisprudence – which remains mostly unimplemented also in the respective countries of origin – highlights that more is to be done to preserve not only equality, but also a harmonious legal order where all EU citizens can enjoy their EU-derived rights. This new judgment’s emphasis on human dignity sets a strong precedent, and should spur better monitoring and enforcement efforts across the Union.

Lastly, beyond Hungary, there are several member states that have emulated Orban’s so-called “LGBT propaganda” laws. Similar measures to the ones found foul of EU law in this judgment are in force in Bulgaria and Slovakia, and are currently being discussed in other MS, such as Portugal and Lithuania. This judgment should shift scrutiny in their direction, to make sure Hungary is not simply replaced by an exponentially larger number of Member States freely pursuing the same (unlawful) anti-LGBTQI+ agenda.

What to learn from this: a new standard we should be proud of and build on

This case marks a significant breakthrough in how the EU approaches violations of its founding values, and one that should serve as a template for future litigation. Firstly, this is a massive improvement from the initial line taken by the Commission at the dawn of backsliding in Hungary, moving closer to the idea of systemic infringement proceedings that clearly show a pattern of departure from the commitments at the very basis of the integration process. As argued by AG Capeta, it is important to frame these sort of violations, especially those that affect a marginalised group, as a violation of a value like human dignity, which “constitutes the actual Grundnorm (basic norm) of post-World War Two European constitutionalism against the horrors of totalitarianism which denied any value of the human person.”

Equally significant is the unprecedented show of solidarity from Member States and the European Parliament. A total of 16 MS intervened before the Court, together with the EU’s democratic body par excellence, which further underlines the widespread commitment to shared values and adds a layer of democratic legitimacy and accountability to the legal process. This is an effective way to bolster the Commission’s case, while also diffusing (bad faith) arguments as to EU priorities being dictated by a detached technocratic “Brussels elite”, instead proving that values matter to the vast majority of the Union

The combination of a strong response from the Member States, the EP and the CJEU should thus inspire confidence in the Commission to bring similarly framed cases on these salient issues in the future, especially in the face of the aforementioned Member States currently enforcing anti-LGBT propaganda laws. Taking Slovakia for example, it is clear that the regression of LGBTQI+ rights operated under Fico since 2023 can satisfy the test for manifest and serious curtailment of rights amounting to an Article 2 TEU infringement – as the reforms have included halting funding for comprehensive sex-ed initiatives, removing guidelines banning forced sterilisation for transgender persons, mandating parental consent for any teaching on sexuality, denying same-sex couples from legal recognition as parents, and entirely banning legal gender recognition for non-cisgender individuals. In this sense, the judgment at hand is timely and its impact should be felt beyond Budapest, at least by giving the Commission leverage to pursue cases against any government operating such deliberate curtailment of values.

As for Hungary, the first test will be whether the Magyar government will be willing to repeal the legislation which bans the Budapest Pride. This is a very time-sensitive issue, since unless the law is off the books by May 28^th, the organisers will not be able to obtain the necessary permits within the required 1-month window.

Ultimately, this judgment is to be welcomed as a seminal piece of EU jurisprudence, and one that expands both the justiciability of EU values, and the protection of LGBTQI+ rights. Moreover, it should be seen as the future of values-related litigation, promoting wider accountability and clearly demarking the Union’s commitment to democratic values in the face of aspiring autocrats. At a time in which fundamental values and specifically minority rights are under attack globally, this is a powerful signal. However, it is paramount that the momentum remains strong, lest yet another powerful values-related decision remains merely a paper tiger.

Clash between gender data vs Hungarian personal data register: Can an existing Hungarian registry system prevent the enforcement of trans rights based on the GDPR?

 

Attila Szabó, PhD

Head of Legal Aid Service, Hungarian Civil Liberties Union

 

*The author assisted the lawyer representing the person concerned as an advisor in the Hungarian case analyzed in the text.  The author also used artificial intelligence to prepare the English version of the text.

 

Photo credit: Jorge Franganillo, via Wikimedia commons

 

In recent years, the Court of Justice of the European Union has increasingly engaged with trans rights. European constitutional community has followed this development. 

It appears that despite the consolidation of a GDPR interpretation aligned with trans rights, and thus with human dignity, Hungarian courts fail to understand that gender identity is not only a matter of self-determination, but also one of data accuracy. If someone presents and lives as a woman, then from the perspective of data accuracy she must also be treated as a woman, since this is the accurate data. The highest Hungarian court, however, sees this differently, and with its decision on the matter, it violates EU law.

Between 2024 and 2025, the Court of Justice of the European Union (CJEU) reshaped the landscape of trans rights in the EU through a remarkable line of cases: Mirin, Mousse, Deldits and Shipov. Taken together, these rulings reveal a structural shift in the CJEU’s approach. The Court increasingly speaks the language of “gender identity” rather than “gender reassignment,” signalling a move away from medicalised understandings of trans status and opening space for non-binary recognition. It integrates ECtHR standards as a constitutional floor while embedding trans rights across multiple doctrinal pillars: EU citizenship, free movement, privacy, equality, and data protection. What emerges is not a single breakthrough, but a coherent jurisprudential arc. One that justifies speaking of a significant doctrinal shift of trans rights in EU law.

Summary of the Hungarian Kúria’s Decision 

The claimant requested the rectification of the “sex” entry in the Hungarian personal data and address register from “male” (as recorded in the civil registry at birth) to “female,” relying primarily on Article 16 GDPR (right to rectification) and explicitly invoking the CJEU’s judgment in Deldits. The claimant argued that the register in question records “sex”, not “sex at birth,” and therefore should reflect lived (social) gender identity. Since her appearance and social relations objectively correspond to a female identity, the currently recorded data were inaccurate within the meaning of Article 5 (1) d) and Article 16 of GDPR. She maintained that the data protection authority should assess whether the recorded data correspond to reality as experienced and perceived, and that EU law requires rectification even if domestic civil registry law remains unchanged.

Both the first-instance court and, on review, the Kúria (Hungarian Supreme Court) rejected the claim. (The decisions have not yet been made public; this blog post provides the first summary of them.) The decisive reasoning was structural: the personal data and address register is a secondary, derivative register whose “sex” entry is based directly on the birth registry. Under Hungarian law, the birth registry records “sex at birth,” defined biologically. Since the personal data register derives this data from the civil registry, it cannot diverge from it without undermining legal certainty and the authenticity of public registers. The Kúria held that the register does not record “lived gender identity” at all; therefore, the data cannot be considered inaccurate merely because the claimant’s current gender identity differs from the birth record. In its reading of Deldits, the GDPR right to rectification applies only to data that are inaccurate within the meaning and function of the specific register concerned. Article 16 GDPR cannot be interpreted as obliging an authority to insert new categories of data (e.g. lived gender identity) without explicit statutory authorisation, nor to assign a different substantive meaning to an existing category (“sex at birth”). The Court therefore concluded that no inaccuracy existed and that rectification was not required.

Mistakes in the decision

The conceptual distinction between “sex at birth” and “sex” undermines the exclusivity claim. The birth registry records a historical biological fact at the time of birth. By contrast, the personal data and address register functions as an operational identification database used for everyday legal and administrative interactions. Accuracy in this context serves identification and legal certainty in present-day relations. If the data recorded there do not reflect the individual’s lived and socially recognised gender, they may fail the accuracy requirement precisely because they hinder reliable identification. The fact that one dataset originates historically from another does not transform the original entry into an immutable legal truth for all future processing contexts.

Secondly, Hungarian law itself does not establish that the civil registry is the sole permissible source of “sex” data in all registers. If it would have been so it would be absolutely unchangeable. However it is not, since the statutory framework governing the personal data and address register allows updates based on legally valid rectification requests. It is fully in line with GDPR. Moreover, even Hungarian constitutional jurisprudence has recognised that legal acknowledgment of gender identity, at least outside the civil registry context, may be compatible with the Hungarian Fundamental Law. This demonstrates that the legal system does not treat the birth entry as metaphysically definitive, but as one administrative record among others.

Finally, the “hierarchy of registers” argument reverses the logic of legal certainty. Legal certainty is not preserved by maintaining inter-database consistency at the price of factual inaccuracy. Rather, certainty requires that state records correspond to verifiable social and legal reality. If necessary, consistency between registers can be achieved by differentiating between “sex at birth” (retained in the birth registry) and current “sex” or gender identity (reflected in identification databases). EU law does not require uniformity of terminology across all databases; it requires accuracy, proportionality, and effective protection of fundamental rights. Therefore, the proposition that only the birth registry may serve as the lawful source of sex-related data is neither compelled by domestic law nor compatible with the GDPR as interpreted by the Court of Justice.

The Decision in the Context of European Law

This ruling stands in notable tension with the emerging CJEU jurisprudence represented by the Deldits, Mirin, Mousse and Shipov cases. In Deldits, the CJEU held that where a register contains personal data relating to gender identity, that data must be rectified if inaccurate, and that Member States may not impose disproportionate evidentiary burdens (such as proof of surgery). The Hungarian Kúria distinguished Deldits on the basis that the asylum register there functioned as a primary identity register, whereas the Hungarian personal data register merely mirrors the civil registry’s birth-sex entry. The core of Kúria's reasoning is therefore ontological: if a register is designed to record biological sex at birth, then a divergence from lived gender identity does not render it “inaccurate.”

This is, of course, a misconception: the personal data register, which is distinct from the civil (birth) registry, exists precisely to record the data necessary for identification. In most cases, those data derive from the civil registry; however, in the case of trans persons, they do not necessarily follow from the birth registry but from factual circumstances that, through a rectification procedure, could also become officially documented facts. This state database can record birth sex data and accurate, actual data too, in parallel. Kúria argues that the registry only processes data relating to "sex" and cannot process data relating to birth gender and current gender without a change in legislation. This is true, of course, but the data controller can, in such cases, process only data relating to current gender in the registry that exists alongside the birth registry system.

Nor is Kúria's argument persuasive that it cannot order the processing of “new” data. The personal data register can, within the existing legal framework, be modified technically and administratively if in its current form it does not comply with the requirements flowing from the GDPR and EU law. The Kúria therefore did not give effect to EU law, but rather to domestic practical constraints: it effectively treated a functional system as if it were a legal norm, even though in reality such a system should adapt to legal norms, not prevent their enforcement.

From an EU law perspective, however, this formalistic register-based distinction raises deeper questions. The recent CJEU trend has emphasised substance over classification: Mirin prioritised the practical effectiveness of EU citizenship and identity coherence across registers; Mousse treated gender-related data as protected personal data subject to strict necessity and proportionality review; and Deldits framed gender identity as a legally relevant dimension of accuracy under the GDPR. Against this background, the Hungarian decision represents a restrictive reading of Article 16 GDPR, confining rectification to internal consistency within a nationally defined registry hierarchy.

In this case, we will still turn to the Hungarian Constitutional Court. However, if that body also fails to restore the possibility of effective legal enforcement under the Hungarian Fundamental Law and the binding EU law applicable on that basis, then, besides applying to the European Court of Human Rights, the only remaining option will be for the European Commission to initiate infringement proceedings and thereby compel Hungary to comply with the binding requirements of the GDPR and the Charter of Fundamental Rights. And yes, if necessary, let them add another field to the personal data register system.

Following the very recent Shipov decision, the situation is even clearer: the position of the Hungarian Supreme Court is completely untenable. In that case, the court ruled that it violates the right to free movement if a person is unable to identify themselves in another Member State with an identity document corresponding to their true gender. The current Hungarian case highlights that this violates not only the right to free movement but also the GDPR’s data accuracy rules. After all, inaccuracy is not only a problem when someone travels to another Member State. The two cases are thus based on different legal arguments, but they point to the same thing: inaccuracy causes privacy difficulties that violate the right to private life protected by the Charter of Fundamental Rights.

 

 

 

Mutual trust does not supersede human rights! Italian judges unprecedently recognize the refugee status to an EU citizen

 

Dr. Chiara Scissa*

Photo credit: Bologna Tribunal, photo by Alex Sirac via Wikimedia Commons

* Research fellow in EU law at the University of Bologna – Alma Mater Studiorum. This contribution is part of the ERC 2022-TSG research project "Gatekeepers to International Refugee Law? - The Role of Courts in Shaping Access to Asylum" (ACCESS). Grant Agreement No. 101078683.

1. On 10 October 2025, the Tribunal of Bologna – Specialized Section on Immigration, International Protection and Free Movement of EU Citizens issued a decree of great importance for the right to asylum as conceived in EU law. For the first time, Italian judges have found that an application for international protection by a citizen of another EU Member State is admissible, granting her refugee status. In the present case, therefore, the presumption between the EU Member States to consider each other as safe countries of origin for all legal and practical purposes related to asylum issues (which in many cases is automatic, see for example here and here for the practice in Ireland, Austria, the Czech Republic, and Hungary) is dropped.

2. With decree r.g. 8445/2023, the Tribunal of Bologna pronounced on a proceeding brought by a Hungarian applicant against the rejection of her international protection claim, notified to her by the Territorial Commission for the Recognition of International Protection of Verona – Vicenza Section (first-instance administrative authority), as inadmissible. Inadmissibility was based on two considerations.

First, Protocol 24 to the Treaty on the Functioning of the European Union (TFEU) on asylum for citizens of EU Member States enshrines that asylum claims by EU citizens must be considered, apart from exceptional cases, inadmissible by virtue of the level of protection of the fundamental rights and freedoms guaranteed to them by the Treaties,  including those enshrined in the European Convention on Human Rights (ECHR), whose rights form part of EU law as general principles. According to the above-mentioned Protocol, an asylum application lodged by a European citizen may be examined or declared admissible only if: a) the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 ECHR, to take measures derogating in its territory from its obligations under that Convention; b) the procedure referred to Article 7(1) of the Treaty on European Union (TEU) has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national; c) the Council has adopted a decision in accordance with Article 7(1) TEU in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) TEU in respect of the Member State of which the applicant is a national; d) a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.

Second, given the existence of conflicting opinions on the applicability of the above exceptions to the case at hand, the Territorial Commission had requested an opinion from the National Commission on the possibility that the proceedings initiated against Hungary pursuant to Art. 7.1 TEU (so-called suspension clause) could fall within the hypothesis referred to in paragraph b). The National Commission, taking note of the absence of an express position endorsed by the Council on the applicability of art. 7.1 TEU to Hungary, concludes that the application should be considered as inadmissible. In the appeal, the defence argues that the applicant is primarily entitled to asylum on the basis of paragraph (b) of Protocol 24 or on the ground of the safeguard clause referred to in point (d), according to which a Member State may decide unilaterally to declare admissible the asylum application lodged by a national of another Member State.

3. To begin with, the Court verified the admissibility of the application for international protection in the present case by assessing whether the initiation of the procedure pursuant to Article 7.1 TEU against Hungary may have fallen within the situations referred to in paragraph b) of Protocol 24 cited above. Article 7 TEU provides for the possibility of suspending certain rights deriving from EU membership in the presence of a serious and persistent violation of the values referred to in Art. 2 TEU (respect for human dignity, freedom, democracy, equality, rule of law and respect for fundamental rights, including the rights of persons belonging to minorities). The rule provides for a two-step procedure. It provides that, on the proposal of one third of EU Member States, or of the European Parliament or of the European Commission, the Council, acting by a majority of four fifths of its members, having obtained the Parliament’s consent, may determine that there is a clear risk of a serious breach of these fundamental principles by a Member State, and address appropriate recommendations to it. Article 7(2) and (3) TEU then provides that, if the infringement is found, the Council, acting by a qualified majority, may decide to suspend some of the rights that derive from application of the Treaties to the Member State in question.

Since its creation in 1999 by the Treaty of Amsterdam until today, the so-called suspension clause has only been initiated twice. In 2017, the European Commission launched the procedure against Poland, but the Commission later withdrew its reasoned proposal in 2024, effectively concluding the procedure. In September 2018, the European Parliament then adopted a Resolution with which it initiated the procedure against Hungary. Despite various discussions and hearings, the latter procedure is still ongoing.

4. Although neither the Council nor the European Council has ever expressed a position on this point, it is clear that the adoption of a reasoned proposal by the European Parliament in this field is an integral part of the procedure laid down in Article 7 TEU, in opposition to the findings of the first-instance administrative authorities. In support of this, in the context of the action for annulment pursuant to Article 263 TFEU filed by Hungary against this Resolution, the Court of Justice of the EU (CJEU) clarified beyond any doubt that “[...] the adoption of the contested resolution initiates the procedure laid down in Article 7(1) TEU. Under point (b) of the sole article of Protocol (No 24), once that procedure is initiated and as long as the Council or the European Council has not taken a decision in respect of the Member State concerned, a Member State may, by way of derogation from the general rule laid down in that single article, take into consideration or declare admissible to be examined any asylum application lodged by a national of the Member State that is the subject of that procedure” (CJEU,  Hungary v. European Parliament, 2021, para. 41).

According to the Tribunal of Bologna, the CJEU's ruling ascertains that the principle of mutual trust, which permeates both the area of freedom, security and justice and the asylum policy “[...] is not a ‘blind trust’ and cannot be taken for granted” (p. 5), as has already been pointed out in the context of the application of the Dublin Regulation both by the CJEU (e.g., in N.S. and M.E., 2011; Abdullahi, 2013) and by the ECtHR (MSS v. Belgium and Greece, 2011).

5. The clear risk of serious and persistent violations of the foundational values of the EU imputed by the European Parliament against Hungary concerned, in particular, the respect for the rights of minorities in the country, including Roma and people with different SOGIESC (Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics). In its 2018 Resolution and in the following ones (2022, 2023, 2024a, 2024b), the European Parliament denounced the widespread climate of violence against minorities in Hungary; the systematic discrimination and exclusion of Roma people with regards to the rights to housing, education, employment, health care and participation in social and political life; the widespread discrimination and xenophobia against people with different SOGIESC whose right to legal recognition and self-determination is denied by current legislation.

6. In view of the fact that the applicant**, who is a Hungarian national of Roma ethnicity, defines herself as transgender, and having verified the serious violations of human rights against those communities in Hungary, the Court finds that the application for international protection is admissible under paragraph (b) of Protocol 24 TFEU and carries out an assessment of the present case. The Court considers the applicant's predicament to be credible. In particular, the judges report that she was registered as a male, which is incongruent with her gender identity, and that she has suffered continuous violence and discrimination since school because of her ethnicity and gender. The applicant reports aggressions and abuses perpetrated both by society and by her family members, who wanted to force her into marriage with a woman denying her gender identity and her transition path. She has decided to leave her country following that episode. She also states that she was unable to correct her personal data by reassigning her registered sex at birth in Hungary because that was prohibited by law.

The Court also takes into account the psychological reports concerning the applicant, which certify traumas and experiences of stigmatization that led her to have suicidal thoughts. The predicament is coherent with the country of origin information collected by the Tribunal about the widespread discrimination in Hungary against both the Roma community and people with diverse SOGIESC, fueled both by society and through law. The Court therefore recognizes that “[...] for transsexual people, the failure to recognize gender reassignment leads to a serious violation of the right to personal identity (with significant repercussions on the rights to work, marriage, family and freedom of movement itself) which is not merely discriminatory, but persecutory, since it forces the person to live [...] with a formal identity different from [...] what he or she actually is” (p. 13). The Court therefore recognises the refugee status to the Hungarian applicant on the ground that she belongs to a particular social group (that of people with diverse SOGIESC and of Roma ethnic minority).

7. The judgment of the Tribunal of Bologna, in addition to being unique in Italy, allows us to draw some broader reflections on EU asylum law. First of all, it contributes to better delineating the purpose ratione personae of international protection, reducing – albeit slightly – the gap that separates it from the scope of refugee protection under the 1951 Geneva Convention. Although, unlike its international counterpart, international protection as conceived in EU law does not normally apply to EU citizens, this does not mean that this exclusion is to be considered automatic or even absolute pursuant to the specific clauses explicitly provided for in Protocol 24 annexed to the TFEU, in addition to the general discretion of each Member State to assess any asylum application by citizens of other Member States (letter d)).

From the point of view of cooperation between Member States, this decree is part of a path already traced by the highest European Courts, which clarify that the principle of mutual trust in the field of asylum is not “unconditional” and can only exist if fundamental rights are effectively respected. The fact that other Member States have already granted forms of protection to EU citizens in the last decade and that, according to Eurostat data, more than 1900 EU nationals - mainly from Hungary, Poland, Romania and Bulgaria - applied for asylum in other Member States between 2020 and 2024 corroborates that the presumption of mutual trust is not monolithic.

In the face of the serious violations of human rights and the rule of law existing in Hungary that infringe the set of values on which the Union is based (Article 2 TEU) and that are pushing its own citizens to seek refuge in other Member States, these are consequently called upon to verify the admissibility of international protection claims by Hungarian citizens not only until EU institutions have ruled on the suspension clause, but also by acting unilaterally to protect fundamental human rights.

** The pronouns and terms used to refer to the applicant are the ones used by the Tribunal of Bologna in its ruling and do not necessarily reflect the opinion of the author.  

Must cases be unfounded to qualify as SLAPPs? What unfoundedness means for GDPR-based SLAPPs

 

 

Léna Perczel, Legal Officer, Political Freedoms Program, Hungarian Civil Liberties Union

 

Photo credit: Dirk Beyer, via Wikimedia commons

 

Countering SLAPPs (Strategic Lawsuits Against Public Participation) has been at the forefront of political, legal and academic discourse over the past two years. The most significant legislative development has been the European Union’s Anti-SLAPP Directive (Directive), backed by a soft law instrument, the Council of Europe’s Anti-SLAPP Recommendation (CoE Recommendation).

But what exactly qualifies as a SLAPP? The Directive, which is limited to cases with cross-border elements, defines the term and treats unfoundedness as a key criterion. In contrast, the CoE Recommendation treats it as just one of several indicators for identifying such lawsuits. While both instruments acknowledge it as a factor, Hungary’s example for General Data Protection Regulation (GDPR) based SLAPP cases suggest it is not necessarily a defining feature. 

In this blog post, I aim to explore—through the lens of this Hungarian case group—whether assessing the SLAPP nature of a case based on unfoundedness could render legal efforts to combat SLAPPs ultimately ineffective. This issue is particularly pressing in Hungary, especially in cases where the press is required to comply with GDPR obligations—yet no benchmark has been established by the European Court of Human Rights (ECtHR, the Court) to date.

 

The GDPR’s burden on the press in Hungary

 

The SLAPP phenomenon gained attention in Hungary when individuals with economic power repeatedly attempted to erase their names and wealth from the media, invoking rights enshrined in the GDPR. This conduct demonstrated that the GDPR can become a powerful tool for SLAPPs when interpreted in a strictly formal manner. By placing the responsibility on data controllers, the GDPR established a rigid procedural framework, obliging them to comply with extensive administrative safeguards. The press becomes a data controller simply by gathering and storing someone’s name, even without publishing it. As a result, a journalist must begin preparing extensive documentation from the moment they start investigating an individual. Unlike commonly used legal remedies against the press, such as press rectification procedures or defamation claims, violations of the GDPR can stand regardless of whether the article is false or reputationally harmful, thus regardless of the journalist’s ethical conduct. Adhering to such duties makes reporting on public matters increasingly difficult. In fact, beyond the administrative burden itself, informing data subjects about articles in preparation can entirely undermine investigative journalism. Data subjects may resort to dismissing evidence or objecting to the data processing, effectively blocking the publication of articles. 

Despite Article 85  of the GDPR, the Hungarian government has not reconciled the GDPR with the freedom of the press, which could have led to exemptions from certain GDPR obligations (such as the strict notification obligations imposed on data controllers, explained below). This lack of reconciliation has created a constitutional loophole: a legal grey zone that reflects the state's failure to fulfil its positive obligation to protect the press. In the absence of clear legal provisions, and due to this unresolved tension, the responsibility has fallen on those applying the law to balance the competing rights of freedom of expression and data protection. 

The Hungarian National Authority for Data Protection and Freedom of Information (DPA) was the first forum in Hungary to detail these obligations, requiring data controllers to inform each data subject preliminarily, proactively, and individually about the data being processed and its legal basis—recognizing only legitimate interest under Article 6(f) of the GDPR as a valid ground for processing. This was despite Forbes’ argument that publishing on public matters falls within the constitutional duty of the press, thus the ground for processing should be public interest (Article 6(e) of the GDPR). This means that journalists, whose work consists primarily of processing personal data, must notify each data subject in advance while conducting their reporting, including during initial research. Compliance is required regardless of whether the data subject has initiated any procedure, making this an even more effective SLAPP tool. In its decision, the DPA entirely failed to consider how such a disproportionate workload could stifle the press. Had public interest been accepted as a legal basis for processing, these notification obligations would not have been imposed on journalists.

 

The manifestation of GDPR-based SLAPPs through legal proceedings against Forbes

 

In 2019, the owners of a Hungarian energy drink company—a family business that gained prominence partly through public funding—initiated proceedings after Forbes included them in its annual wealth rankings. Their inclusion prompted GDPR-based claims.

First, they argued that the press lacked a legal basis for publishing their personal data, and that the data processing therefore constituted a violation of their rights (primary claims). Second, they contended that even if legitimate interest were accepted as the legal basis, the press had failed to meet its procedural obligations—such as informing the data subjects about the legitimate interest assessment (ancillary claims).

Both GDPR-based claims proceeded in parallel before the civil court and the DPA. Initiating multiple proceedings simultaneously by the same claimant is a typical characteristic of SLAPPs, intended to increase pressure on the target. 

In this blog post, I will focus on the DPA case. However, it is important to illustrate the SLAPP nature of these proceedings by noting that, in the civil case, the claimants requested a preliminary injunction—which the court granted (The Metropolitan Court ordered the interim measure in its decision no. 25.Pk.23.297/2019/17-I. The Appellate Court and the Supreme Court upheld the decision in their decisions 2.Pkf.25.030/2020/2. and Pfv.IV.20.395/2020/4 respectively. The decision of the Supreme Court is currently before the EctHR).

As a result, until the court ruled on the merits of the case whether Forbes had a legal basis for processing the data, the magazine was prohibited from publishing any information about the family members—amounting to de facto censorship for more than four years (The interim measure was repealed by the first-instance court’s non-final decision, decision no. 25.P.21.067/2023/21).

It was in the DPA procedure initiated by this claimant that the authority first established a formal interpretation of the GDPR, as explained above. Although the DPA’s decision was challenged in the administrative courts—emphasizing the claimants’ economic position and the press’s constitutional duty—the Supreme Court, while acknowledging that “it is of particular importance to inform the public about the use of public funds for the development of private enterprises,” and that such reporting falls under the press’s watchdog role, nevertheless found no grounds for exempting the press. It affirmed that the press is required to fulfill notification obligations when relying on legitimate interest as a legal basis for data processing.

 

The definitions’ cornerstone: unfoundedness

 

Effectively countering SLAPPs requires clear definitions. This section examines those offered by the Directive and the CoE Recommendation, which both include unfoundedness. Unfoundedness has been central to debates over the Directive’s initial draft. Many still argue that it imposes an unnecessary limitation on what constitutes a SLAPP, potentially hindering the effectiveness of action.

The CoE Recommendation describes unfoundedness as one of several indicators that could help in recognizing SLAPPs, allowing a broader margin of appreciation for legal interpreters. In contrast, the Directive’s scope is limited to unfounded claims.

According to its title, the Directive operates within a dichotomy, providing safeguards against (a) manifestly unfounded claims or (b) abusive court proceedings. While it does not define “manifestly unfounded” or “unfounded”, it expands the definition of “abusive court proceedings against public participation.”

According to the definition, “‘abusive court proceedings against public participation’ mean court proceedings which are not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties, and which pursue unfounded claims”. Although the title and scope of the Directive suggests (a) and (b) as alternating categories (as indicated by the conjunction “or”), the definition of abusive court proceedings introduces “and,” requiring unfoundedness as part of both categories. This raises the question of whether the two are truly alternatives. (Note: most interpretations suggest that (a) and (b) are indeed alternatives, however, that contradicts the grammatical interpretation.)

One understanding could be that the Directive places “manifestly unfounded” claims and “abusive court proceedings” on a spectrum—with “manifestly unfounded”, as ab ovo unfounded at one end and “abusive” cases, potentially less clearly unfounded, further along that continuum. However, this interpretation creates additional uncertainty for courts in determining where to position a given case on that spectrum.

An interpretation aligned with paragraph 29 of the Directive’s preamble—which provides context for its operative definitions—suggests that only proceedings that are either fully or partially unfounded can be classified as abusive. If this is accepted, the Directive effectively collapses its own dichotomy, making unfoundedness the sole defining element and rendering the distinction between the two categories functionally meaningless. 

This distinction becomes most relevant when determining the appropriate safeguards. Defendants facing manifestly unfounded claims benefit from an early dismissal mechanism, whereas those facing abusive court proceedings—though still partially unfounded—must endure the full process and may only seek reparation after proceedings conclude. The legal uncertainty leaves the court’s decisions subject to accusations of cherry-picking. 

Despite earlier debates over elements of the definition and criticism of the distinction between manifestly unfounded claims and abusive court proceedings in terms of available remedies, this differentiation has persisted, along with the ambiguity surrounding 'unfoundedness.' The lack of a clear definition has left stakeholders in a state of legal uncertainty.

 

Unfoundedness in the context of GDPR-based SLAPPs

 

When examining what unfoundedness means for GDPR-based SLAPPs in Hungary, it is essential to continue distinguishing between the primary claim and the ancillary claims.

As discussed previously, the family members raised two distinct claims: the primary claim, namely the lack of legal basis for processing personal data, and the ancillary claims, concerning the failure to adhere to its procedural obligations.

First, let us examine the primary claim. The family argued that, in the absence of a legal basis, Forbes had no right to publish their personal data. The courts ultimately held that the press had a legitimate interest in reporting on the family members, given their receipt of public funds. However, as the GDPR was a relatively new legal instrument and no relevant precedent existed at the time, the legal question was considered unsettled until a final judgment had been delivered. Consequently, until then, the possibility of classifying such claims as unfounded could not have been seriously contemplated.

And although this decision enabled the press to report on the family in these circumstances, the publication of the family members’ personal data in other contexts will likely continue to be assessed on a case-by-case basis, meaning such claims may not be considered ab ovo (manifestly) unfounded. The case illustrates that unsettled legal questions are inherently difficult to classify as unfounded, allowing SLAPP proceedings to persist and continue imposing a burden on the press.

Second, when examining the ancillary claims, defining "unfoundedness" becomes even more ambiguous. Article 85 of the GDPR states: “Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information.” From a legal positivist perspective, the absence of implementing legislation under Article 85 of the GDPR has significant consequences. Since no national laws have been adopted to clearly define the boundaries of such reconciliation (for example, by exempting the press from the obligation to preliminarily, individually, and proactively inform data subjects, that is required of other data controllers like big companies), individuals may lawfully invoke GDPR provisions even in ways that restrict journalistic activities or the freedom of the press. As a result, legal claims based on alleged violations of GDPR obligations by the press cannot automatically be deemed unfounded. Therefore, under the Directive’s definition, such claims cannot be classified as SLAPPs.

However, the legal positivist approach is problematic, as it completely disregards context and fundamental rights aspects. From a fundamental rights perspective, it is contrary to freedom of the press to require full compliance with all GDPR-based duties, as it significantly hinders the press’s constitutional role. The lack of reconciliation in Hungary therefore constitutes a constitutional loophole, and exploiting such a loophole should never constitute a well-founded claim: applying the law in a way that contradicts the state’s positive obligations to protect the press and disproportionately hinders its operation is inherently problematic. It also disregards the state’s obligations stemming from the GDPR itself, as it uses mandatory language.

Furthermore, at the European level, the varying degrees of reconciliation between freedom of the press and data protection under Article 85 make it increasingly difficult and uncertain to draw a consistent line around unfoundedness.

 

The European interest

 

While the lawsuits against Forbes will most likely fall outside the Directive’s scope—due to their domestic nature and the fact that the procedure based on the DPA’s decision is administrative—interpreting the Directive’s definition remains relevant, particularly for future cross-border cases that do fall within its scope. Furthermore, the Directive sets only a minimum standard, meaning that national transpositions can expand its scope to include domestic cases, where unfoundedness would still be a determining criterion. Additionally, early-dismissed cases will likely reach the ECtHR, whether brought by the press or the claimant—ultimately forcing the Court to engage with the Directive’s interpretation. The relevance of interpreting the definition of the Directive extends beyond GDPR-based SLAPPs, as other claims that lack precedent or exploit constitutional loopholes can fall outside the scope of the Directive due to the definition. 

As the CoE Recommendation’s scope is not limited to cross-border claims, assessing the current cases from its perspective is highly relevant. In fact, since the ECtHR was established by the Council of Europe, the CoE Recommendation remains an important interpretive source when the Court rules on SLAPP-related cases.

These GDPR-based cases highlighted that the prolonged proceedings and ongoing legal uncertainty drain press resources and have already created a chilling effect. However, within the Directive’s framework, GDPR-based SLAPPs may not even fit the definition of “abusive court proceedings”. Even if they do, it is unlikely they would qualify as “manifestly unfounded,” placing them outside the scope of the early dismissal mechanism. As a result, the Directive might fail to effectively combat SLAPPs, especially the ones emerging in legal grey zones—even when defendants (the press) ultimately win. To put it more bluntly, the narrow definition could completely thwart the objective of the Directive and jeopardize its long-term legitimacy.

While broadening the definition of manifestly unfounded claims carries risks, it is unlikely that the drafters intended early dismissal to apply only in rare cases. The CoE Recommendation’s approach appears to offer a more suitable reference point for identifying SLAPPs. But let us wait and see what the ECtHR has to say. Until then, legal uncertainty continues to shield SLAPPs under the guise of procedural compliance. 

 

Acknowledgements: I would like to sincerely thank Beatrix Vissy and Tivadar Hüttl for their valuable insights and contributions.

Budapest Pride: banned? - Banning Pride as a violation of EU free movement

 

Attila Szabó, LLM in European law, Head of Legal Aid Service, Hungarian Civil Liberties Union

The author would like to thank Steve Peers and Máté Szabó, HCLU's professional director, for their ideas for the text!

 

Photo credit: Tételes istentagadó, via Wikimedia Commons

 

On 5 April, Renáta Uitz published a pinpoint blog post on Verfassungblog about how and why Budapest Pride, which has been held every year for 30 years in Hungary for the equality of LGBTQ+ people, was banned. Uitz describes in detail why this is contrary to Article 2 of the TEU and how this government action violates the European Court of Human Rights case law. The CEU (and Royal Holloway) professor also explains how Hungary got to this point.

 

I would like to add two things to this reflection. One is just brief: Hungarian civil society organisations are committed to organising and hosting Pride and the Mayor of Budapest also supported the organizers, despite the categorical legal ban, on the very same fundamental rights basis that Uitz explains: assembly and thus standing up for LGBTQ+ rights is a fundamental right and can only be restricted if it restricts another fundamental right. The abstract and unscientific paedophile arguments that the Hungarian government is operating with are not. Consequently, the restriction of rights is also contrary to the Hungarian Fundamental Law and goes against the ECtHR case law cited by Uitz.

 

It is another matter that the Hungarian legislator allowed for fines to be imposed on the basis of the face recognition system at banned rallies, such as the Budapest Pride, which was planned to take place despite the ban. The legal issues involved would require a separate blog post. A very careful Hungarian-language piece concludes that "the use of facial recognition technology to detect and punish offences, and thus to restrict assembly and free expression, may be objectionable on a number of points. Although (...) the prohibition rules (Article 5 of the EU AI Regulation) do not directly preclude the non-real-time use of facial recognition technology, there are nevertheless a number of fundamental rights concerns which render the use of the system unlawful. The primary avenue of redress may therefore be to invoke these fundamental rights violations."

 

My argument, which may be news to many, is that the restriction runs counter to one of the EU's four freedoms, the right of free movement and residence. This is what I want to convince readers of.

 

Freedom of movement: limited?

 

In my view, if a non-Hungarian EU citizen can enjoy the right to participate in an LGBTQ+ rights march in every EU country then she can not freely choose this given country.

 

Participation in Pride is a fundamental right that has become part of Atlantic and therefore European culture. All EU citizens have the right to express their support for LGBTQ+ people in any EU Member State within the framework of Pride. If an EU citizen is not allowed to participate in Budapest Pride because it cannot take place, he or she is not free to choose Hungary as a place of residence, as this means that he or she cannot freely exercise in that Member State the fundamental rights that he or she could exercise in another Member State. So, an EU citizen who is committed to LGBTQ+ rights cannot come to Hungary to work or study, because he cannot stand up for the rights he could stand up for anywhere else in any city.

 

One might think that restrictions on freedom of movement are only violated if hard barriers are put in place, but in my view this is not the case. If a Member State introduces an ideological, ideological, theoretical or even religious restriction that alienates other EU citizens from exercising their right to move and reside freely, then that right is infringed. This is particularly so in cases where the exercise of the right in question is consensual in the EU or protected by human rights court decisions and other international law standards. Participation in Pride is such a case.

 

In my view, this conclusion is true in all cases where an EU citizen wishes to stay in Hungary on a long-term basis, but is discouraged from doing so by this kind of unlawful restriction of a fundamental right, and also in cases where an EU citizen wishes to come to Budapest specifically for Pride. The latter case is not unprecedented either, as Budapest Pride in recent years has hosted many EU citizens who would not otherwise have stayed in Hungary for a longer period. So banning Pride is not only an obstacle to the free movement of those who would like to attend such an event but cannot, but also to those who attend a formally illegal event and face sanctions for doing so.

 

Based on Art 6 of Directive 2004/38, free movement also extends to people who make short-term visits, ie to participate in an event or demonstration. The Cowan and Bickel and Franz judgments show that free movement rights in the context of short-term visits go further than entry onto the territory – ie. equal treatment as regards victims’ rights and fair trial rights respectively.

 

Legal bases and arguments

 

The right to freedom of movement is a cornerstone of EU law, enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU). Furthermore, the EU Charter of Fundamental Rights reinforces this right, particularly Article 45, which explicitly states that every EU citizen has the right to move and reside freely within the territory of the Member States. Although Article 51 of the Charter says that the Charter itself should only be taken into account in the application of EU law, I am not arguing that the Charter should be taken into account in relation to the right of assembly in the Member States. I say that the Charter should be taken into account in relation to Article 21 TFEU. Indeed, the restriction on the right of assembly restricts this EU right, guaranteed in TFEU Article 21, as follows.

 

The Court of Justice of the European Union (CJEU) plays a vital role in shaping and expanding the interpretation of EU freedom of movement, particularly in light of the EU Charter of Fundamental Rights. The CJEU increasingly considers the Charter when assessing national measures that may restrict freedom of movement. This means that restrictions must not only be justified under EU law but also comply with fundamental rights.

 

Cases involving the rights of LGBTQ+ individuals and their families have highlighted the CJEU's willingness to use the Charter to protect fundamental rights within the context of freedom of movement. The Charter has strengthened the protection of freedom of movement by providing a clear and comprehensive list of fundamental rights. It has also given the CJEU a stronger basis for challenging national measures that are deemed to be incompatible with these rights.

 

The Coman and Hamilton (C-673/16) judgment helps us to understand the context. This case dealt with the refusal of a Romanian authority to recognize the marriage of a Romanian citizen with a US citizen, a same-sex couple, celebrated in Belgium. The CJEU ruled that the term "spouse" in the context of EU freedom of movement includes same-sex spouses. The Court emphasized the need to respect the fundamental rights of EU citizens, including the right to respect for private and family life (Article 7 of the Charter) and the principle of non-discrimination (Article 21 of the Charter). This case significantly expanded the rights of same-sex couples in the EU, ensuring that their family life is protected when exercising freedom of movement.

 

Steve Peers wrote about the case that “[t]he Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

 

In another case (C-808/21), the CJEU determined that EU citizenship, established by the Maastricht Treaty and articulated in Article 20 TFEU, implies a right for EU citizens to join political parties in other Member States, despite the absence of explicit provisions. The Court reasoned that denying this right undermines the effective exercise of voting rights in municipal and European Parliament elections, which are expressly granted to EU citizens. The CJEU emphasized the principle of equal treatment under Article 22 TFEU, stating that Member States cannot impose conditions on non-national EU citizens that are not applied to their own nationals. While acknowledging national identity and the Member States' authority over national elections, the Court asserted that EU values, such as democracy and equal treatment, limit national discretion. The Court's rulings enhance EU citizenship's political rights, reinforcing its role as a fundamental status within the EU legal order. Finally, the court linked the right to join political parties to Article 12 of the Charter, which concerns freedom of association.

 

Peers wrote in the Verfassungblog that “remarkably, the Court links the implied political rights of EU citizens in municipal and European Parliament elections not only to the express rights of EU citizenship, but also to democracy and equal treatment, as represented in Article 10 TEU and the EU’s values – putting them at the same rank as national identity. So national identity cannot constitute an exception to democracy or the rule of law et al – but must be reconciled with those values.”

 

I think that the EU understandings, based on the ECtHR rulings, is that restrictions on certain political freedoms are not only a violation of EU law if they discriminate against EU citizens, but also if they restrict those rights without discrimination. For, as I argued above, a Member State that falls below the standards of European fundamental rights is in fact restricting the free movement of its citizens by alienating the citizens of other States from the freedom of movement and residence. Who would like to study in Budapest without being able to choose to participate in the celebration of equality according to sexual orientation? I think it can be argued that far fewer people would do so than if this right were not restricted.

 

The EU’s Fundamental Rights Agency has a more detailed collection of relevant cases.  These cases demonstrate the CJEU's commitment to protecting fundamental rights within the context of freedom of movement. The EU Charter of Fundamental Rights provides a vital framework for the CJEU's interpretation of EU law in this area.

 

Obviously, the facts of these cases are different from those of the Budapest Pride ban, but they follow a similar logical structure: that is, national measures become relevant under EU law when, in the exercise of free movement, they deprive an EU citizen of fundamental rights that would be guaranteed in another Member State.

 

Conclusion: no pasarán

 

I argue that banning Budapest Pride is not only a violation of the Hungarian Fundamental Law, not only a violation of the European Convention on Human Rights, not only a violation of Article 2 of the TEU, but also a violation of the right to freedom of movement and residence. There is the same human rights minimum without which an EU Member State cannot be considered so free, so grounded in European values, that a citizen of any other Member State is free to choose to travel and reside there. Member States must not violate the privacy prohibitions on which freedom of movement and residence are based, and they must not, in my opinion, exclude citizens of other Member States from joining political parties by excluding everyone equally. In the same way, Member States cannot exclude EU citizens from lawful assembly by European legal standards. If they do so, they restrict freedom of assembly.

 

Of course, many things can deter an EU citizen from moving to another Member State: from the climate, to the quality of social and health services, to tax policy. However, fundamental rights deterrence is different from other types of deterrence because of the Charter and the relevance of ECtHR jurisprudence. Denial of fundamental rights, on the other hand, carries a normative message: 'You cannot exercise certain fundamental rights here'. And it is no longer a matter of preference for the person, but of the exercise of his or her citizenship status. It is up to the Court of Justice of the European Union to work out the yardstick for this.