Q+A: With historic LGBTQ+ rights case, 'The Commission is asking Hungary: Do you really want to remain part of the club?'

The case against Hungary's Child Protection Act goes to the heart of EU treaty values. How the ECJ rules may determine Hungary's EU future — and how strictly member state violations are policed.
Protesters express their opposition to the Hungarian government's anti-LGBTQ+ legislation.

By Eloise Hardy

Eloise is a reporter at The Parliament Magazine.

21 Nov 2024

Stigmatising LGBTQ+ people, drawing a false equivalence between same-sex relations and paedophilia, and violating EU treaty-bound values – these are just some of the criticisms that have been levied against Hungary's controversial Child Protection Act. It came before the European Court of Justice (ECJ) earlier this week. 

When it passed in 2021, the government of Viktor Orbán presented the law as a way to protect children from harmful content. To do so included imposing strict restrictions on depictions of homosexuality and gender reassignment in the media and educational materials.

The European Commission referred the law to the ECJ for review in December 2021, alleging it constituted a “massive and flagrant violation” of EU rules. To date, 16 EU member states have joined the case against Hungary.

Hungary has vigorously defended the law and denies it is discriminatory. The law was initially intended to increase punishment for convicted paedophiles. When the legislation passed, Mark Rutte, who was the Dutch prime minister at the time, went as far as to say that Hungary had “no business being in the European Union anymore." 

The spat over the law is part of a bigger frustration that Brussels and many EU members have with Budapest. The two sides continue to clash over immigration, judicial reforms, media freedom and support for Ukraine

Tuesday’s hearing was the only chance for the Commission and participating member states to make their case. A ruling, which is not expected for months, could have far-reaching impact on Hungary’s future in the EU and Brussels’ willingness and ability to enforce the values set down in the bloc’s treaties. 

In a Q&A with The Parliament, John Morijn, an assistant professor of European human rights law at the University of Groningen in the Netherlands, discussed the potential consequences and why the case is such a big deal.  

The following interview, conducted on the first day of the case, has been edited for length and clarity. 

According to the Commission, the Hungarian law violates internal market rules, fundamental rights and EU values. How did this play out in court? 

I expected there would be real debate in the courts today. But it became clear quite quickly that actually not only the Commission and the Parliament think it's a good idea to have some much wider scope in terms of holding member states to account in that respect, but all the 16 states that intervened were actually in agreement too.  

What [the Commission] did was they said if you discriminate by drawing a direct equivalence between homosexuals and transgender people and paedophiles, that is not only an internal market problem, but it's also a problem of fundamental rights, which is in Article 1 of the Charter of Fundamental Rights — which is human dignity.  

The Commission went even further by then citing Article 2 of the Treaty on the European Union. It's sort of the DNA provision, which says the European Union is founded on multiple different principles and values like human dignity, fundamental rights, protection, equality, and solidarity. The Commission says Hungary has crossed the red lines, so can then also bring a case against Hungary on the very foundational values of the European Union over and above the internal market and the charter. 

Why is this case such a big deal? 

With Article 2 so far, the policy and the practice really have been that as soon as you have your foot in the door and you are a member [of the EU], there's not really any way to effectively check whether a member is backsliding. So even if your signature was under Article 2 of the Treaty on European Union, this was never really checked. This is the first time that the Commission has actually taken Article 2 and said, ‘You entered the European Union and you agreed to these foundational values. Now we're also going to hold you to account in light of these same values.’  

How strong would you say the case is against Hungary? 

It's rock solid. This case is not really about who will win or lose because I'm sure the Commission will win and Hungary will lose. The only question really is how you win. So do you only win on internal market issues? Or do you also win on the heavier charges, for example, in the way that you stigmatise LGBTQ+ people by equating them with paedophiles, going directly against the very nature of fundamental rights and human dignity?

And this case is even heavier than that. The Commission is asking Hungary: Do you really want to remain part of the club?  

So then what happens? 

What the Commission is going for, and which I think is very likely to happen next July when I expect the ruling to come out, is that the court will say Hungary is in violation of internal markets of the charter, but also of Article 2 of the Treaty on European Union. That will make it much harder for Hungary to come into the clear again. The Commission could then go back to court, and Hungary could get new daily fines for not implementing a court document.  

I think the ramifications of this politically could be much wider. To give you one example, this could be used by the Commission to cut more funds to Hungary, or it could be used by the Council to take Article 7 more seriously. So it all depends on how Hungary loses.  

If Hungary wins this case, it would basically mean that the ECJ would have to throw out 20 years of its own case law because it would have to make a very huge U-turn on all the things that this has set on the importance of protecting values. It would also leave about 16 member states and the Commission and Parliament out in the cold. It would be a total reboot of how we know the European Union. So I think a Hungary win is highly unlikely. 

Is there any legal precedent for this kind of case?  

No. This is the first on multiple counts. It's the first time that the Commission relies on Article 1 of the charter. It's also the first time it relates directly to an Article 2 argument. And Article 2 is basically the DNA of what the European Union should be about.  

This case includes just one of many issues that the EU has with Hungary. How is Hungary still in the bloc?

It's a good question. It's a fact that some of the important issues of today are actually unanimity failures. For example, the way that we support Ukraine: Hungary, whether we like it or not, has leverage over us. They're very aware of that leverage and they're willing to push all the way to see how far that leverage reaches. That's one side of the coin.

The other side of the coin is that you can interpret today as a real moment where a clear red line is being drawn. And if you continue going this way, the next stop will really be suspending your voting rights under Article 7 of the Treaty on European Union. Suspending all your funds. So I think that this is a power play at the very highest level that is taking place in the courtroom.

It's legal in language, but it's purely political in nature. 

How does this strong show of support for the EU values you’ve mentioned fit into the steady drift towards far-right and illiberal policies we have seen around the bloc?

One of the things that was so remarkable about today was that there were member states supporting the European Union that now have governments in place that are not necessarily aligned with the values being protected — my own country [the Netherlands], where we now have a radical right-wing party as the biggest player, led by Geert Wilders. But the Netherlands intervened on the side of the European Union as a union of values. So did the German representatives, one of the most powerful states in the European Union where there will be elections that will very likely lead to a very large right-wing turnout.  

There were quite a few member states that were represented here, that even if they have their problems at home they still make the case that it's absolutely necessary to keep the house in order at the EU level. And I think that is a very important signal here, that the way that member states are in chaos democratically at a national level does not yet transpire for them into a different line of action at the EU level.

In a sense, these things are still sort of separate. It’s all for the protection of democracy. 

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