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 28th, 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.
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