By Maria Ana Lourenço
EU family law?
The EU does not have competence over substantive family law, which is an exclusive competence of the Member States (MS) consistent with the principle of conferral. Nevertheless, as stressed by the European Court of Justice (ECJ), MS must still comply with EU law. In recent years, a political shift seems to be underway. This shift has been especially stirred by populist discourses and far-right movements. This blog post will focus on the analysis of the Hungarian Act LXXIX and will discuss its incompatibility with EU law. Moreover, it will critically explore the legal procedures that the EU institutions have triggered to remedy Hungary’s breach of EU law.
Case-study: Hungarian legislation on LGBTQ+ matters: the legal framework
Current Hungarian Prime Minister Viktor Orbán came into power in 2010. A new Hungarian constitution was approved in 2012, which was shortly reviewed in 2013, stressing Christian-related values by focusing on a traditional (or nuclear) definition of family. In 2020, the Hungarian Parliament enacted a law that ended recognition for trans people, making the so-called “birth sex” unchangeable. Moreover, the constitution – which already defined marriage as a legal union between a man and a woman – clarified that “a father is a man, and a mother is a woman”. What is more, the Hungarian civil code restricted adoption to married couples, thereby excluding non-traditional families’ access to adoption.[1]
Hungarian legislation that violates the fundamental rights of LGBTQ+ persons:
Against this backdrop, on June 15, 2021, the Hungarian Parliament enacted Act LXXIX,[2] to protect children against sexual exploitation and child abuse “[by] taking more severe action against pedophile offenders and amending certain Acts for the protection of children.”[3] Whilst this law aimed to pursue a legitimate public interest (the protection of minors) – and it is worth recalling that the EU recognizes that the protection of children is an “absolute priority for the EU and its MS”[4] – the content of the law is nevertheless inadequate to reach such objective.
Hungary has not sufficiently justified how the exposure of children to images on homosexuality and transsexuality could be harmful to their upbringing. Truth be told, this law seems yet another political step towards the further stigmatization of the LGBTQ+ community, following the political motivations of the mentioned recent constitutional and legal changes. This stigmatization emerges by the association of homosexuality and non-conforming gender identity with pedophilia, framing the former as serious a threat for children. A distinct yet comparable law enacted by Russia banning so-called gay propaganda has been found incompatible with the Convention in the European Court of Human Rights (ECtHR) case Bayev v. Russia.[5]
Interestingly, the law was meant to be enacted without any references to the portrayal or depiction of homosexuality/diverse gender identity. An amendment was only passed five days before the enactment of the law. The law-making process, however, was carried out in a speedy and untransparent manner, and impaired the expression of objections, including the possibility to take into consideration technical recommendations.[6] This unorthodox law-making process remains unjustified.
This resulted in the Act LXXIX prohibiting the depiction and discussion[7] of themes related to sexual orientation and diverse gender identities in the public sphere. This, of course, not only includes schools but the media as well. In essence, the Act prohibits or severely limits the access to content that “propagates or portrays divergence from self-identity corresponding to sex at birth, sex change or homosexuality”[8] for individuals under 18 years of age. Furthermore, the law bans minors from accessing any platform that portrays homosexuality, such as books and TV shows. This also includes, for instance, a prohibition on wearing a rainbow flag publicly. To explain these measures, a Hungarian government representative declared that “[t]here are contents which children under a certain age can misunderstand and which may have a detrimental effect on their development at the given age, or which children simply cannot process, and which could therefore confuse their developing moral values or their image of themselves or the world.”[9]
Interestingly, Hungarian authorities argued that the Act bestows parents with the right to educate their children according to their values; but that is simply not the case insofar as the law only further restricts the education of children by cutting out a portion of social reality.[10] As a consequence, parents will also no longer be able to teach their children to respect the LGBTQ+ community. This is prone to have repercussions not only for children who identify themselves as a member of the community, but for all children and the general public. Equating homosexuality and non-conforming gender identities to pedophilia might induce children to believe that they are equally corrosive to society.
European institutions take action: The infringement procedure, the Article 7 TEU mechanism, and the Rule of Law conditionality mechanism
The infringement procedure
Days after Act LXXIX entered into force, Commissioners Thierry Breton and Didier Renders reached out to the Hungarian government to express concerns about the incompatibility of Act LXXIX with various EU provisions. Notwithstanding this, Hungary’s reply did not tackle the issues that had been raised. In greater detail, on July 15, 2021, the European Commission triggered the first step leading to the infringement procedure against Hungary based on Article 258 TFEU (a procedure which consists of the Commission taking legal action against a MS that fails to comply with EU law). Following Hungary’s reply, the Commission sent a letter of formal notice listing the EU law provisions that had been violated by Act LXXIX. It also highlighted that this law engages the rights to human dignity (Article 1 EU Charter), freedom of expression and information (Article 11 EU Charter), the right to respect for private life and family life (Article 7 EU Charter), and the right to non-discrimination (Article 21 EU Charter).[11] This altogether constitutes a serious violation of Article 2 TEU, which enshrines the core values of the EU, even though the Commission did not explicitly clarify this in the letter of formal notice.[12]
The Commission also took this opportunity to highlight a disclaimer on a children’s book with LGBTQ+ content made by the Hungarian Consumer Protection Authority. This disclaimer considered that the book portrayed “behavior deviating from traditional gender roles” and thus ordered the publisher to identify the book as such.[13] Reference is to the same book that Prime Minister Viktor Orbán called mere “homosexual propaganda.”[14]
Curiously, on this same date, the Commission also triggered the same mechanism against Poland (which was also grounded on the violation of the fundamental rights of LGBTQ+ persons).
On July 2021, the EU Parliament published a resolution that stated that the referred Hungarian law breached “EU values, principles and law”, urging the Commission to trigger a new procedure against Hungary so as to halt it from benefitting from the EU budget[15] due to its breaches of the rule of law.
The Commission was however not satisfied with Hungary’s responses on the disclaimer of the referred book and on the issues raised by Act LXXIX. The Hungarian government once again failed to address the issues that had been raised. In this same month, Viktor Orbán announced that a referendum on the issues raised by Act LXXIX was to take place, as a response to the EU reaction. Such referendum posed questions that used “manipulative wording”.[16] However, the referendum was deemed invalid, given that only 44% of voters casted a valid vote for each of the four questions posed, 35% abstained, and about 20% casted an invalid vote. It would have been needed at least 50% valid votes for the referendum to be valid, and 50% of which would have needed to be in favour. The invalidity of the referendum was mainly due to damaged ballot papers. This could be the sign of a positive response to the urges of LGBTQ+ advocacy groups in Hungary.[17]
The Commission, therefore, moved on to the next phase of the infringement procedure, by sending Hungary a reasoned opinion on December 2, 2021, i.e., a formal request for Hungary to comply with EU law, failing which it will refer the case to the ECJ. Yet again, Hungary showed inflexibility to change its national provisions incompatible with EU law, making the Commission conclude that “Hungarian authorities did not sufficiently respond to the concerns of the Commission in relation to equality and the protection of fundamental rights and did not include any commitment to remedy the incompatibility.”[18]
As Hungary did not abide by EU law within two months of the reasoned opinion, the Commission referred the case to the ECJ[19] on July 22, 2022. For the first time, a case against a MS had its basis on a violation of Article 2 TEU. By doing this, the Commission has shown to be open to a broader interpretation of the Treaties.[20] The action against Hungary was brought by the European Commission on the 19th of December of 2022 Case C-769/22) and it is, as referenced, based on Article 2 TEU as a self-standing provision. In literature, it has been long discussed whether Article 2 TEU is merely ideological and has normative values or, instead, if it constitutes binding law.[21] Against the claim that Article 2 TEU has legal value is its evident problem of determinacy, which can leave room for legal uncertainty. However, something is clear: by appealing to Article 2 TEU, the Commission is framing this infringement procedure as a values issue.
The ECJ’s judgment of this case should give an answer to this long-debated question. It will be decisive to the EU’s role in the fight against the violation of Article 2 TEU values. This is all the more important, given that the Article 7 TEU mechanism (otherwise known as “the nuclear option”) which can be triggered whenever a MS violates Article 2 values, is blatantly failing to be an effective response to such violations, as it will now be discussed. It is important to clarify that the Commission brought forward three arguments, one of them being the “traditional argument”, i. e., that the Act breaches a series of internal market legislation, as well as the argument that the Act infringes provisions of the EU Charter. However – and as it has been enhanced – the Commission levelled up with the third argument: that of the violation of Article 2 TEU, which had never been pointed out in an infringement action under Article 258 TFEU.
Fifteen MS have joined this claim and will be parties against Hungary.[22] This fact also shows that the legal argument put forward by the Commission is a form of political mobilisation. The ECJ is still to give a pronouncement on the matter. Such decision will establish the mandatory measures Hungary must follow to abide by the judgement of the ECJ (as established under Article 260 TFEU).
Nevertheless, it ought to be said that this use of Article 2 TEU can also be problematic by raising a question of legitimacy of the ECJ, insofar as it may (or not) expand its competences. Moreover, it should also be asked whether the ECJ is well-assessed to judge on values. In short, it seems that an alternative approach would be to frame this case as a fundamental rights one. There would be lower risk because it would have more robust legal grounds and more precise standards. Plus, no question of legitimacy from the ECJ would be raised. It is worth remembering that the possible expansion of the ECJ’s competences ought to be done through treaty modifications and not through the ECJ.
Article 7 TEU mechanism
On the 12th of September 2018, the European Parliament, under its prerogative enshrined in Article 7 TEU, issued a resolution[23] urging the Council of the EU to determine the existence of a clear risk of breach of EU principles and values as enshrined by Article 2 TEU by Hungary. As a consequence of such procedure, the EU could eventually suspend certain rights of this MS.
The EU Parliament expressed concerns regarding the arguable Rule of Law in Hungary, by drawing attention to issues regarding, inter alia, the freedom of expression, of religion, as well as the functioning of the constitutional and electoral system. Hungary then brought an action against Parliament because of such Resolution, but the action was dismissed by the ECJ (case C-650/18).
In order for the Council to determine there is in fact a clear risk of a breach of Article 2 TEU values, four-fifths of MS must vote in favor (excluding the MS in question). Moreover, two-thirds of the European Parliament also have to vote in favor. The Council must however always hold a hearing with the MS in question before making a decision. Regarding Hungary, the Council held such a hearing on the 22nd of June 2021[24], wherein Hungary covered the topics raised by the said reasoned proposal of the European Parliament. Furthermore, Hungary also addressed the questions posed by twelve delegations, the first of which concerned precisely Act LXXIX, enacted a few days before. The question regarded the possible effects of the law on equal treatment, the rights of children and persons belonging to minorities, and especially that of LGBTQ+ persons. The Hungarian delegation replied that the Act “intended to protect children from external interference, to promote an independent choice of education by parents under Article 14 of the EU Charter of Fundamental Rights, and to ensure the preservation of the traditional values of Hungarian society”, concluding that it did not undervalue the referred rights, nor was it at odds with the respect for human dignity. If the Council were to be unsatisfied with Hungary’s responses, it could move forward with the procedure and determine that Hungary is indeed failing to respect Article 2 TEU values by a qualified majority. It would thereby suspend some of Hungary’s rights, whilst all obligations imposed by EU law would still be binding on the MS. However, this has not been the case: the Council has not moved forward with the procedure, even though, as said, it does not require unanimity to do so. This inaction has been highly condemned by the European Parliament, accusing the Council of breaching the rule of law by its seemingly nonchalant stance towards Hungary’s violation of the rule of law.[25]
Such inaction is deplorable considering the current political situation in Hungary. This MS continues to defy EU law, and rapid action from EU institutions is indispensable.
The Rule of Law conditionality mechanism
The EU Parliament has also urged the Commission to fall back on all mechanisms to remedy the current situation, especially by triggering the conditionality mechanism. This is an independent mechanism from Article 7 TEU, and aims to take action against, inter alia, breaches of the rule of law. Unsurprisingly, both Hungary and Poland argued before the ECJ that such procedure lacked a treaty basis, and its regulation should, therefore, be annulled. On the 16th of February 2022, the ECJ dismissed the action.[26] The Commission sent its first notification regarding this procedure on 27 April 2022. The Council made its decision on 18 September 2022[27] to suspend approximately 6.3 billion in budgetary commitments, which is the equivalent to 55% of EU funds allocated for Hungary.[28]
Current situation and future prospects
However, as of April 13, 2023, even after all these legal-political reactions of EU institutions, the Hungarian parliament has enacted a new law that seems to be intertwined with Act LXXIX. This new law encourages people to anonymously report LGBTQ+ families with children.[29] Notwithstanding this, surprisingly, Hungarian President Katalin Novak has vetoed the law, which was said to transpose EU law provisions that protect whistle-blowers and their reports of the “abuses of fundamental rights and values”.[30] The Hungarian President claimed that the referred law “does not strengthen but rather weakens the protection of fundamental values”.[31]
Still, there is a growing and very unfortunate tendency that Hungary is following: appealing to traditional Christian values to justify anti-LGBTQ+ propaganda. But Hungary is not alone in this, not even within the EU scenario, which all the more discredits European institutions. There seems to be a pandora-box effect of growing nationalism and illiberalism within some EU MS that jeopardises the values around which the EU is built. Had the European Council been stricter in applying the Article 7 TEU mechanism, it would have better shown that the EU is not oblivious to the flagrant violation of its primary law, nor of its core values.
European Commission President Ursula von der Leyen once said “I strongly believe in a European Union where you are free to love whom you want (…) that embraces diversity. This is the foundation of our values.”[32] But these are little more than words in an institution where the violations of the rule of law and of fundamental rights continue to occur undisturbed. In the end, upholding fundamental rights is not only relevant to the wellbeing of the LGBTQ+ community but also to the EU’s credibility.
[1] Fella, S. (2022). Hungary: Viktor Orbán’s Government and European reaction. Retrieved from House of Commons Library: https://commonslibrary.parliament.uk/research-briefings/cbp-9516/
[2] “Anti-LGBTQI provisions of the Act include amendments to five acts of parliament: Act XXXI of 1997 on the protection of children and guardianship administration (…) Act CCXI of 2011 on the protection of families (…); Act XLVIII of 2008 on the basic conditions of and certain restrictions on economic advertising activities (…); Act CLXXXV of 2010 on media services and mass communication (…); and Act CXC of 2011 on national public education (…)”. Information on Act LXXIX of 2021 amending certain acts for the protection of children. (2021). Retrieved from Háttér Society: https://en.hatter.hu/sites/default/files/dokumentum/kiadvany/hatter-venicecommission-actlxxix.pdf
[3] Act LXXIX.
[4] Commission refers HUNGARY to the Court of Justice of the EU over violation of LGBTIQ rights. (2022). Retrieved from European Commission: https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2689
[5] Bayev v. Russia, ECtHR (2017), No. 67667/09.
[6] Information on Act LXXIX of 2021 amending certain acts for the protection of children. (2021). Retrieved from Háttér Society: https://en.hatter.hu/sites/default/files/dokumentum/kiadvany/hatter-venicecommission-actlxxix.pdf
[7] Ibid.
[8] Act LXXIX.
[9] Rankin, J. (2021). Hungary passes law banning LGBT content in schools or kids’ TV. Retrieved from The Guardian: https://www.theguardian.com/world/2021/jun/15/hungary-passes-law-banning-lbgt-content-in-schools; Fella, S. (2022). Hungary: Viktor Orbán’s Government and European reaction. Retrieved from House of Commons Library: https://commonslibrary.parliament.uk/research-briefings/cbp-9516/
[10] “Like the infamous Russian ‘propaganda law’, this new legislation will further stigmatize LGBTI people and their allies,” said Amnesty International’s director in Hungary, Dávid Vig, commenting on a series of amendments that were added last week to a law targeting child abuse. Rankin, J. (2021). Hungary passes law banning LGBT content in schools or kids’ TV. Retrieved from The Guardian: https://www.theguardian.com/world/2021/jun/15/hungary-passes-law-banning-lbgt-content-in-schools
[11] EU founding values: Commission starts legal action against Hungary and Poland for violations of fundamental rights of LGBTIQ people. (2021). Retrieved from European Commission: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3668
[12] Bonelli, M. (2022). Infringement Actions 2.0: How to Protect EU Values before the Court of Justice. European Constitutional Law Review, 30–58. “In the first action, which concentrates on the measures limiting minors’ access to content that portrays homosexuality, the Commission relies on a variety of primary and secondary law norms (from free movement provisions to the Audiovisual Media Services Directive and the e-Commerce Directive), but those claims mostly serve an instrumental purpose, namely to show that the national measures fall within the scope of EU law and therefore that the Charter is applicable. The last claim raised by the Commission is actually the central one: those measures infringe human dignity (Article 1 of the Charter), freedom of expression and information (Article 11), the right to respect of private life and family life (Article 7) and the right to non-discrimination (Article 21). The reasoned opinion issued in December 2021 confirms the fundamental rights’ arguments developed in the letter of formal notice, but, as noted earlier, at least in the press release the Commission has made no further explicit reference to Article 2 TEU.”.
[13] Reuters, S. C. (2021). Hungary orders LGBT publisher to print disclaimers on children’s book. Retrieved from The Guardian: https://www.theguardian.com/books/2021/jan/20/hungary-orders-lgbt-publisher-to-print-disclaimers-on-childrens-book
[14] Fella, S. (2022). Hungary: Viktor Orbán’s Government and European reaction. Retrieved from House of Commons Library: https://commonslibrary.parliament.uk/research-briefings/cbp-9516/
[15] EU votes for action over Hungary’s anti-LGBT law. (2021). Retrieved from BBC News: https://www.bbc.com/news/world-europe-57761216
[16] Wakefield, L. (2022). Desperate Viktor Orbán sets horrific anti-LGBT+ referendum for same day as Hungary election. Retrieved from PinkNews: https://www.thepinknews.com/2022/01/12/hungary-lgbt-propaganda-referendum-election-viktor-orban/
[17] Fella, S. (2022). Hungary: Viktor Orbán’s Government and European reaction. Retrieved from House of Commons Library: https://commonslibrary.parliament.uk/research-briefings/cbp-9516/
[18] Commission refers HUNGARY to the Court of Justice of the EU over violation of LGBTIQ rights. (2022). Retrieved from European Commission: https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2689
[19] For more information on the infringement procedure: European Commission publishes January 2023 infringements package. (2023). Retrieved from Deloitte: https://www.taxathand.com/article/29459/European-Union/2023/European-Commission-publishes-January-2023-infringements-package
[20] Maurice, E. (2023). The Rule of Law: the uncertain gamble on conditionality. Retrieved from Foundation Robert Schuman: https://www.robert-schuman.eu/en/european-issues/0660-the-rule-of-law-the-uncertain-gamble-on-conditionality
[21] For more information on this discussion, read Kaiser, L. (2023). A New Chapter in the European Rule of Law Saga? Retrieved from Verfassungsblog: https://verfassungsblog.de/a-new-chapter-in-the-european-rule-of-law-saga/
[22] As of the 6th of April 2023 (deadline to join the claim) MS joined: Belgium, Luxembourg, Netherlands, Portugal, Austria, Ireland, Denmark, Malta, Spain, Sweden, Finland, Slovenia, France, Germany and Greece, as well as European Parliament. Liboreiro, J. (2023). 15 EU countries, including Germany and France, join legal case against Hungary’s anti-LGBT law. Retrieved from Euronews: https://www.euronews.com/my-europe/2023/04/07/15-countries-including-germany-and-france-join-legal-case-against-hungarys-anti-lgbt-law
[23] European Parliament, European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)) available at https://www.europarl.europa.eu/doceo/document/TA-8-2018-0340_EN.pdf.
[24] European Union: Council of the European Union on Values of the Union – Hungary – Article 7(1) TEU Reasoned Proposal – Report on the hearing held by the Council on 22 June 2021, available at https://www.statewatch.org/media/2619/eu-rule-of-law-council-hungary-hearing-outcome-22-6-21-10247-21.pdf.
[25] MEPs: Hungary can no longer be considered a full democracy. (2022). Retrieved from News European Parliment: https://www.europarl.europa.eu/news/en/press-room/20220909IPR40137/meps-hungary-can-no-longer-be-considered-a-full-democracy
[26] Court of Justice of the European Union Press Release No 28/22, https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-02/cp220028en.pdf.
[27] Council of the European Union, Proposal for a Council implementing decision on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary, available at https://data.consilium.europa.eu/doc/document/ST-12551-2022-INIT/en/pdf.
[28] Maurice, E. (2023). The Rule of Law: the uncertain gamble on conditionality. Retrieved from Foundation Robert Schuman: https://www.robert-schuman.eu/en/european-issues/0660-the-rule-of-law-the-uncertain-gamble-on-conditionality
[29] Hansford, A. (2023). Hungary’s chilling new law lets people ‘report’ same-sex parents to authorities. Retrieved from PinkNews: https://www.thepinknews.com/2023/04/14/hungary-viktor-orban-lgbt-parent-law/
[30] Hungary strips ‘anti-LGBTQ’ section from whistleblower law. (2023). Retrieved from Le Monde: https://www.lemonde.fr/en/hungary/article/2023/05/23/hungary-strips-anti-lgbtq-section-from-whistleblower-law_6027758_220.html
[31] Kijewski, L. (2023). Hungarian president vetoes anti-LGBTQ law. Retrieved from Politico: https://www.politico.eu/article/hungary-president-katalin-novak-vetoes-viktor-orban-anti-lgbtq-law/amp/
[32] Hungary’s anti-LGBT law is a ‘shame’ says Ursula von der Leyen. (2021). Retrieved from Euronews: https://www.euronews.com/my-europe/2021/06/23/hungary-s-anti-lgbt-law-is-a-shame-says-ursula-von-der-leyen
