Forbidden Colours was at EU Court Hearing on Hungary’s Anti-LGBTIQ+ Law

On 19 November 2024, the Court of Justice of the European Union held the oral hearing regarding the court case against Hungary’s anti-LGBTIQ+ law. Our outreach and policy officer, Vincent Reillon, was in the court room and wrote the summary bellow.

Summary of the hearing at the Court of Justice of the EU on the Hungarian ‘anti-LGBT propaganda’ law

The Court of Justice of the European Union in Luxembourg held the hearing in the infringement proceedings launched by the European Commission against Hungary in relation to the ‘anti-LGBT propaganda’ law adopted in June 2021 under Viktor Orbán’s government. This law prohibits the ‘promotion’ and representation of LGBTQI+ themes in places where minors could be present. It has numerous ramifications, including bans on broadcasting in the audiovisual media, restrictions on the sale of books on these themes, and restrictions on sexual and relationship education in schools.

Registered with the Court on 19 December 2022, this infringement procedure is historic for two reasons. The first is that the European Commission has found for the first time that a Member State has breached Article 2 of the Treaty on European Union (TEU), which defines the fundamental values of the Union. Secondly, because 16 EU Member States and the European Parliament have decided to join the Commission in its case against Hungary. This level of support for the Commission against another Member State is unprecedented and demonstrates a shared awareness of the seriousness of the situation.

Given the importance of the case for the jurisprudence that could result from it on Article 2 TEU, the hearing was held before the full Court. However, the presence of all 27 judges is only required in around one case in 1000, a further demonstration of the historic nature of the case presented and the judgment expected.

The 12 Member States present – Belgium, Denmark, Germany, Estonia, Ireland, Greece, Spain, Luxembourg, Malta, the Netherlands, Finland and Sweden – all supported the European Commission in its request that Hungary be condemned for violating Article 2 TEU. The European Parliament also lent its support, marking a united front between the European institutions and the Member States against the law wanted and defended by Viktor Orbán’s government.

At the end of the hearing, the Advocate General announced that her report on the case would be published on 5 June 2025. This suggests that the Court will rule on the case in the second half of 2025.

The Commission presents its arguments

On Tuesday 19 November, before a full Grand Chamber, the European Commission was the first to present its arguments. It sees the Hungarian law as a frontal attack on the legal order. In the Commission’s view, the law adopted in Hungary on the grounds of ‘child protection’ represents a systematic, deliberate, coordinated and serious breach of EU rules and norms.

The Commission argues that the supposed risks posed by exposing minors to sexual minorities and gender diversity invoked by the Hungarian government have not been demonstrated. On the contrary, the Commission points out that it is precisely this law that causes harm to minors, particularly LGBTQI+ minors, by reinforcing the feeling of exclusion and isolation of the people concerned, as well as prejudice against LGBTQI+ people.

The presentation then turns to the question of whether there has been a breach of Article 2 TEU and how this breach should be recognised. Such a breach has never been brought before the Court. The Commission’s task is therefore to set out the reasoning that the Court could follow to confirm the infringement of this article, which defines the fundamental values of the Union such as human dignity, equality and respect for human rights.

The Commission presents a cascading reasoning based on the fact that the Hungarian law infringes EU directives on services and the audiovisual sector, as well as several articles of the Charter of Fundamental Rights. In the Commission’s view, the Hungarian law is of a systemic nature that goes beyond individual harm. The cumulative measures of the law are of such intensity, extent and scope that it not only affects individuals but also attacks the very fabric of society.

The Commission notes that the law presents a serious and far-reaching attack and that it infringes various fundamental rights and norms reflecting a coordinated policy against a minority. Such a law demonstrates the fact that the Hungarian government considers LGBTQI+ people to be a threat to society, in particular through the link made in Hungarian law between LGBTQI+ people and paedophiles. For the Commission, the law attacks the human dignity of LGBTQI+ people, but also freedom of expression and information.

In this cascading approach, the Commission thus justifies its request to the Court to recognise a violation of Article 2 TEU, marking the seriousness of the infringement caused by the Hungarian law to the fundamental rights of individuals and the fundamental values of the European Union.

Hungary defends its ‘child protection’ law tooth and nail

Hungary then takes the floor to defend the law challenged by the European Commission. For Hungary, this is a complete misunderstanding. The purpose of the law is not to discriminate against or harm LGBTQI+ people. Its purpose is to protect minors from content that could be harmful to their development and cause them anxiety, depression and other harmful effects. For the Hungarian government, this means trusting parents, who are best placed to decide when to discuss LGBTQI+ issues with their children.

Hungary considers that the law adopted is neither homophobic nor transphobic and that it has no impact on the equal rights of LGBTQI+ people. This is evidenced by the fact that the European Commission has not been able to identify a single LGBTQI+ person who would have been directly affected by the measures adopted.

From the Hungarian point of view, the law is not aimed at individuals but at speech directed at minors. Hungary says that it is up to the European Commission to demonstrate that speech and information about sexual minorities and gender diversity are not harmful to minors. In the meantime, Hungary is applying a precautionary principle in relation to such discourse, while ensuring the right of parents to educate their children as they see fit. Hungary therefore rejects all the accusations made by the Commission in this case.

The other Member States and the European Parliament

Of the 16 Member States that joined the proceedings in spring 2023, 12 attended the hearing to present their arguments in support of the Commission. Only France, Austria, Portugal and Slovenia did not see fit to supplement their written observations sent in the autumn of 2023 with an oral argument before the Court.

Belgium is leading the way, arguing that the European Union must be given the means to defend its values. By presenting its reasoning inspired by the procedures followed by the European Court of Human Rights in Strasbourg, Belgium considers that Article 2 TEU has indeed been violated. Denmark then points out that the right not to be discriminated against is a fundamental right of the EU. In the Nordic country’s view, the Hungarian law infringed human dignity and Article 2 TEU had indeed been violated.

Germany considers that the Court must adopt a clear two-pronged approach to justify a breach of Article 2: recognise that the core values are affected and that the breach found is serious. As these two conditions are deemed to have been met in the present case, Germany also considers that Article 2 TEU has been infringed. Estonia then points out that prosperity can only be achieved in peace and respect for fundamental values. In the case of the law complained of, the Baltic country notes that LGBTQI+ people are treated as a threat by the Hungarian government, violating all the values set out in Article 2 TEU.

Ireland, for its part, considers that by signing the EU treaties, Hungary has undertaken to respect the EU Charter of Fundamental Rights. It follows the Commission’s logic and recognises that Article 2 TEU has been breached, in conjunction with the other provisions of Union law that have been violated. Greece and Spain also follow the Commission’s logic.

Luxembourg, for its part, considers that various levels have been crossed by the adoption of the Hungarian law. For the Duchy, Article 2 TEU represents the constituent glue of the Union, its vital fabric. Respecting the values set out in it is a prerequisite for any accession to the EU and, following accession, it is impossible for a Member State to dispense with it. Recognising the serious, cumulative, structural and systemic nature of the breaches of EU law, Luxembourg also acknowledges that Article 2 TEU has been violated.

Malta then presents, in support of the Commission, its view of a breach of Article 2 TEU based on relevant and wide-ranging breaches of EU law in areas where the Union has exclusive or shared competence. Malta then concludes that the two conditions set out had been met, and in turn considers that Hungary has indeed breached Article 2 TEU. The Netherlands come next and make the same finding.

Finland, for its part, points out that the values defined in Article 2 TEU form the identity and foundation of the Union. Taking up the Commission’s reasoning of a general, widespread, serious and lasting infringement of the Union’s standards, Finland in turn considers that Article 2 TEU has been violated. Sweden, the last Member State to express an opinion, stresses that values are at the heart of the Union’s common legal order. Sweden also considers that, through its law, the Hungarian government clearly intends to stigmatise LGBTQI+ people and considers that Article 2 TEU has been infringed.

The European Parliament concludes the presentations by stating that it rarely intervenes in infringement proceedings. However, the European Parliament has adopted resolutions strongly condemning the Hungarian law and had to intervene in this procedure in full support of the European Commission.

Technical questions highlighting the importance of the judgment

The question session that follows the parties’ pleadings focuses almost exclusively on the question of what justifies the recognition of an infringement of Article 2 TEU. The technical discussions focuses in particular on the difference between the infringement procedure under discussion and the procedure proposed in Article 7 TEU, which enables the Council of the EU to find that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2 TEU.

As the Court has never found a breach of Article 2 TEU, the judges try to understand the different approaches proposed by the Commission and the Member States to establish a robust procedure for deciding, in different situations, whether or not Article 2 TEU has been breached.

The final statements by the various parties simply reiterate the positions initially set out. The Advocate General then concludes the hearing by indicating that her report on the case, based on the written contributions and the day’s hearing, would be published on 5 June 2025. The Court’s judgement on this case will therefore not come until the second half of 2025.