Op-Ed: “European Parliament defending LGBTIQ people in Hungary: all tools to be used” by Aleksejs Dimitrovs
On 8 July 2021, the European Parliament adopted its resolution on breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of the legal changes adopted by the Hungarian Parliament. It came as a reaction to the adoption by the Hungarian National Assembly of the Act amending the Child Protection Act, the Family Protection Act, the Act on Business Advertising Activity, the Media Act and the Public Education Act. In fact, the Act prohibits the ‘portrayal and promotion of gender identity different from sex assigned at birth, the change of sex and homosexuality’ in schools, in television programmes and in publicly available advertisements on any platforms for persons aged under 18, even for educational purposes, and disqualifies such content from being considered as a public service announcement or social responsibility advertisement even if intended for adults.
Before that, 18 Member States co-signed a statement calling on the Commission to use all the tools at its disposal to ensure full respect for EU law, including by referring the matter to the Court of Justice of the EU. 17 Heads of State or Government adopted a joint statement declaring that they will continue fighting against discrimination towards the LGBTIQ community.
But even against this unprecedented background, the European Parliament has used language previously not seen in such resolutions. For example, for the first time it invites Member States explicitly to bring an action against Hungary before the Court of Justice in accordance with Article 259 TFEU. Also for the first time, it indicated that Member States might use the possibility to recourse to Article 33 of the European Convention on Human Rights and initiate inter-State cases against Hungary in the European Court of Human Rights.
As usual in the European Parliament’s resolutions, the Commission is asked to launch an infringement procedure. This call is reinforced by the invitation to use additional procedural tools (accelerated pre-trial stage, requesting expedited procedure and interim measures in the Court of Justice, including penalties for non-compliance with such interim measures).
The case of Hungary, including the issues related to LGBTIQ persons, is also on the agenda of the Council of the EU – in 2018, the European Parliament adopted 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 EU is founded. Now, the Council has been asked to arrange the next Article 7 TEU hearing on Hungary in September and to adopt recommendations addressed to Hungary as soon as possible – including the recommendation to repeal the new Act.
Several demands concern the budgetary tools. In particular, the European Commission is invited to immediately trigger the procedure provided for in Article 6(1) of the Rule of Law Conditionality Regulation. While the exact relationship between the concepts of the ‘rule of law’ and ‘fundamental rights’ within the said Regulation remains to be tested, the European Parliament recalls that the rule of law must be understood in relation to the other values of the EU, including fundamental rights and non-discrimination.
Another recent addition to the EU toolbox is the new Common Provisions Regulation. Article 15(1) and Annex III stipulate that there is a horizontal enabling condition – to ensure compliance with the Charter of Fundamental Rights. The Commission is called upon to take the steps regarding expenditure related to relevant structural and investment funds and to ensure that the 2021-2027 partnership agreement and programmes for Hungary are not approved until full compliance with the horizontal enabling condition is ensured.
Finally, another opportunity is provided by the Recovery and Resilience Facility Regulation. The European Parliament calls on the Commission and the Council to carefully analyse every measure outlined in the draft Hungarian Recovery and Resilience Plan and to only approve the plan if it is established that it would not contribute to implementing the Act, and subsequently lead to the EU budget actively contributing to breaches of fundamental rights in Hungary. As we know from Ledra Advertising v Commission and ECB (C-8/15 P), the institutions are bound to ensure that they do not contribute to sufficiently serious breaches of fundamental rights, otherwise non-contractual liability may be incurred.
It should be mentioned that the resolution has not remained unnoticed. On 15 July the Commission sent Hungary a letter of formal notice because it considers that the Act violates a number of EU rules – in particular, the Audiovisual Media Services Directive, the e-commerce Directive, the Single Market Transparency Directive, the Treaty principles of the freedom to provide services and the free movement of goods, the General Data Protection Regulation, as well as several rights enshrined in the Charter: human dignity, freedom of expression and information, the right to respect for private life as well as the right to non-discrimination. To a large extent, these grounds had been mentioned before, in the administrative letter sent by the Commission to Hungary. But in the formal notice, the Commission also mentions that because of the gravity of these violations, the contested provisions also violate the values laid down in Article 2 TEU. Very interesting to know is how the Commission approaches Article 2 TEU in this context – whether it is referred to separately or in conjunction with other provisions, whether a violation of other provisions is a necessary precondition to find a violation of Article 2, and so on.
In parallel, the Commission has also launched another infringement procedure regarding the case mentioned in the resolution. In January 2021, the Hungarian Consumer Protection Authority obliged the publisher of a book for children presenting LGBTIQ people to include a disclaimer that the book depicts forms of ‘behaviour deviating from traditional gender roles’. The Commission indicated that this equates to restricting the right to freedom of expression and the right to non-discrimination as enshrined in the Charter and breaches the Unfair Commercial Practices Directive.
Apart from that, the Hungarian authorities also assume that the delay regarding the assessment by the Commission of the Hungarian Recovery and Resilience Plan is also caused by the adoption of the Act. The Commission refrains from commenting officially on this.
But what about the Council after the strong statements of most Member States? For the time being, it has not responded positively to the European Parliament’s call to organise an Article 7 TEU hearing on Hungary in September. According to the draft agendas, the next hearing might take place only in December (and could be replaced by the ‘state of play’ information by the Commission). It would be a pity if so – the Council could use the momentum to show by deeds how important the issue of fundamental rights in Hungary is.
Aleksejs Dimitrovs is legal advisor for the Greens/EFA Group in the European Parliament. Views expressed here are entirely his own.