CJEU Case C-769/22 / Opinion
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CJEU Case C-769/22 / Opinion
Key facts of the case
Failure of a Member State to fulfil obligations – National legislation introducing stricter measures against ‘paedophile offenders’ and amending certain laws to protect children – Legislation primarily targeting content portraying or promoting gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality – Article 56 TFEU – Directive 2000/31/EC – Directive 2006/123 – Directive 2010/13/EU – Restriction of provision of services – Charter of fundamental rights – Article 21 – Non-discrimination – Article 7 – Right to private and family life – Article 11 – Freedom of expression – Article 1 – Human Dignity – Article 2 TEU – Values of the European Union – Justiciability – Criterion for finding an infringement of Article 2 TEU
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court:
- Declare that, by adopting a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. törvény (Law LXXIX of 2021 adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children), Hungary has failed to fulfil its obligations under EU law in the following ways:
- by prohibiting, by the Child Protection Law, minors from accessing content which promotes or portrays gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality, Hungary has infringed Article 3(2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Articles 16 and 19 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, Article 56 TFEU, Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2 TEU;
- by prohibiting, by the Advertising Law, minors from accessing advertising which promotes or portrays gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality, Hungary has infringed Article 9(1)(c)(ii) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), Article 3(2) of Directive 2000/31, Articles 16 and 19 of Directive 2006/123, Article 56 TFEU, Articles 1, 7, 11 and 21 of the Charter and Article 2 TEU;
- by imposing, by the Media Law, an obligation on media service providers which offer linear media services to classify all programmes the main focus of which is the promotion or portrayal of gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality as category V, and thus to broadcast those programmes only between 22.00 and 5.00, and by excluding such programmes from classification as public interest media or as socially beneficial advertising, Hungary has infringed Article 6a(1) of Directive 2010/13, Articles 1, 7, 11 and 21 of the Charter and Article 2 TEU;
- by imposing, by the Media Law, on the Media Council an obligation to request that the Member State under the jurisdiction of which the media service provider operates to implement effective measures to eliminate any violation identified by the Media Council, Hungary has infringed Articles 2 and 3(1) of Directive 2010/13;
- by prohibiting, by the National Public Education Law, the promotion of gender identities that do not correspond to the sex at birth, sex reassignment or homosexuality, in education related to sexual culture, sexual life, sexual orientation and sexual development, Hungary has infringed Articles 16 and 19 of Directive 2006/123, Article 56 TFEU, Articles 1, 7, 11 and 21 of the Charter and Article 2 TEU;
- by imposing an obligation, by the Law on the criminal records system, on the body with direct access to the registered data to make available, to authorised persons, the registered data of persons who have committed sexual offences against children, Hungary has infringed Article 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), as well as Article 8(2) of the Charter;
2 Order Hungary to bear its own costs and to pay those incurred by the European Commission;
3 Order the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, Ireland, the Hellenic Republic, the Kingdom of Spain, the Republic of Estonia, the French Republic, the Grand Duchy of Luxembourg, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Slovenia, the Republic of Finland, the Kingdom of Sweden as well as the European Parliament to bear their own costs.
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Paragraphs referring to EU Charter
28. The present infringement proceedings concern multiple violations of the rules for the internal market as they relate to the freedom to provide services and several rights contained in the Charter. Importantly, they also raise, for the first time, a separate plea of infringement of Article 2 TEU.
29. The primary importance of the questions regarding the infringement of Article 2 TEU has prompted me not to follow the order of the pleas of infringement as brought by the Commission. As many of the issues relating to the first layer of pleas set out in the Commission’s application are technical legal issues, and as some pleas of infringement relate only to EU secondary law and not to the Charter and Article 2 TEU, I will deal with that first layer of pleas in the Part Two of my analysis.(18)
30. However, to the extent that this first layer of pleas is important to introduce the Charter into the present case,(19) I should explain at the outset that, in my view, all the amendments at issue come within the scope of application of the directives relied on by the Commission and/or of Article 56 TFEU. (20) Therefore, any derogation from the freedom to provide services introduced by those amendments must not only be justified by reasons of public interest, attained in a proportionate manner, but also cannot violate any of the rights guaranteed by the Charter. (21)
31. Notwithstanding my decision to change the order in which I will address the Commission’s pleas, it is important to emphasise that, in its application, the Commission requested that the Court declare that there has been an infringement of Article 2 TEU in connection with other infringements of EU law relating to the freedom to provide services and of the Charter. Therefore, the plea regarding the breach of Article 2 TEU is raised within the scope of EU law.
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34. With these introductory remarks in mind, I will proceed with my Opinion as follows. In Part One under A, I will explain why the present case is, at its core, about values. Under B, I will offer arguments as to why the Hungarian legislation represents a violation of fundamental rights protected under Articles 21, 11 and 7 of the Charter, and, importantly, why those violations cannot be justified. I will further explain why that amounts to a violation of human dignity, as enshrined in Article 1 of the Charter. Under C, I will turn to the question as to whether the Commission’s claim regarding a self-standing infringement of Article 2 TEU can be accepted. In Part Two of the present Opinion, I will return to the Commission’s arguments and to Hungary’s counterarguments about the infringement of concrete provisions of the FEU Treaty and of EU secondary law.
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35. When questioned at the hearing about its reasons for introducing a self-standing ground alleging an infringement of Article 2 TEU, the Commission explained that, when examining the individual infringements of various EU secondary instruments and the Charter, it came to the conclusion that there is ‘something more’ in the present case.
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44. Before I enter into a discussion about the applicability of Article 2 TEU in the present case, I will first demonstrate that the contested rules violate a number of fundamental rights protected by the Charter, and that the violation of those rights cannot be justified by the reasons that Hungary puts forward.
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45. The Commission claims that Rules 1, 3, 4, 6 and 7 violate the prohibition of discrimination on grounds of sex and sexual orientation as contained in Article 21 of the Charter (2), freedom of expression and information as guaranteed by Article 11 of the Charter (3), and respect for private and family life as provided for in Article 7 of the Charter (4). Hungary denies all these allegations, contending that its Rules serve the protection of the minors. I will analyse whether the Rules at issue constitute an interference with those rights, after I first explain that the Charter is applicable to the Rules at issue (1). As I will demonstrate, the interference that indeed exists cannot be justified (5), which is why I consider that the Commission’s claim about the violation of human dignity should also be accepted (6).
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46. In accordance with Article 51(1) of the Charter, Member States are bound by the Charter only when they implement Union law. As explained by the Court, that means that the fundamental rights guaranteed therein must be complied with whenever national legislation falls within the scope of EU law. (26) In other words, Hungary can only infringe the Charter if the contested Rules fall within the scope of Article 56 TFEU and/or the instruments of secondary law which are, according to the Commission, infringed by those Rules. Before assessing the grounds alleging a breach of fundamental rights, I should therefore first determine whether the five Rules at issue fall within the scope of EU law.
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58. In conclusion, all five Rules contested by the Commission fall within the scope of EU law and must, therefore, be in conformity with the Charter. 59. The Charter being applicable, I will now turn to assess the compatibility of those Rules with the Charter rights invoked by the Commission. ...61. Article 21 of the Charter prohibits discrimination, among other grounds, on the basis of sex and sexual orientation.
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82. The European Union’s constitution, which includes the Treaties and the Charter, expresses the choice that people are to be treated equally notwithstanding their sex or sexual orientation. That choice is expressed in Article 21 of the Charter, enumerating sex and sexual orientation as prohibited grounds of discrimination, and in Article 19 TFEU, which is a legal basis for Union measures combating this type of discrimination.
83. Even if it might be true that, in some European societies, the rights to equality of LGBTI persons are not yet fully internalised, a Member State that adopts rules that steer the societal acceptance of equality of that minority group away from that goal is in breach of Article 21 of the Charter. ...
84. Article 11 of the Charter guarantees the freedom of expression and information. That right includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority. Article 11(2) of the Charter specifies that the freedom and pluralism of the media shall also be protected.
85. According to the Explanations relating to the Charter, (45) the rights guaranteed in Article 11 of the Charter correspond to those guaranteed by Article 10 ECHR. From that perspective, the findings of the ECtHR have been a valuable source of inspiration for the case-law of the Court.
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92. Another argument that Hungary raises in defence of its interference is that the right of LGBTI persons either to impart or receive information is not directly affected as the Rules do not prevent LGBTI persons from receiving or imparting information, but relate only to certain content that might be harmful to minors. That argument is not relevant. Article 11 of the Charter is aimed at preventing censorship and applies to rules that prohibit or restrict certain content.
93. Therefore, I consider that, even if limited to certain means and modes of expressing and receiving information, the contested Rules interfere with the freedom of expression and information.
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94. Article 7 of the Charter guarantees the right to respect for private and family life. 95. According to the Explanations relating to the Charter, the rights guaranteed in Article 7 of the Charter correspond to those guaranteed by Article 8 ECHR. Therefore, just as in relation to freedom of expression, the case-law of the ECtHR is relevant for the interpretation of the right to respect of private and family life. (50)
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100. In relation to the Commission’s allegation regarding the infringement of Article 7 of the Charter, Hungary contends that the Commission has not demonstrated any stigmatising effect resulting from the legislation at issue.
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103. According to Article 52(1) of the Charter, the rights expressed therein may be limited. Any limitation must be provided for by law and must respect the essence of the right at issue. For the limiting rules to be justified, first, they must aim at protecting a general interest recognised by the Union or the rights and freedoms of others. Second, the restriction must be proportionate to the aim it pursues.
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105. By pursuing such aims, Hungary contends that it in fact protects the fundamental rights of children and parents, as contained in the Charter. It relies on Article 24(2) of the Charter, which requires the protection of the best interests of the child, and Article 14(3) thereof, which mentions the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions.
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118. For the same reason, the contested Hungarian legislation cannot be understood as being adopted in order to secure the best interests of the child, one of the fundamental rights envisaged by the Charter, which could, in principle, be balanced against other rights, such as non-discrimination, the right to private life and freedom of expression. Hungary did not provide any evidence that shielding children from LGBTI content is in the best interests of the child.
...126. Hungary further contends that the rights of parents to raise their children in accordance with their convictions is not only their cultural and policy choice but one of the fundamental rights set out in Article 14(3) of the Charter.
127. However, that right, which the Charter bestows on parents, is narrower than the right which Hungary claims to safeguard by the Rules. It is part of the Charter provision that relates to the right to education. As the Explanations to the Charter state, Article 14 is based on the common constitutional traditions of Member States and on Article 2 of the Protocol to the ECHR. The ECtHR held that the right of parents mentioned in the second sentence of Article 2 of the Protocol to ECHR is merely ‘an adjunct of the fundamental right to education’.(68) Therefore, the right of parents, as contained in Article 14(3) of the Charter, also only enables parents to ensure the education and instruction of their children in conformity with their religious, philosophical and pedagogical convictions in the context of the freedom to establish educational establishments of different traditions. Hungary cannot therefore rely on that Charter right to justify a violation of fundamental rights to non-discrimination, private life and freedom of information in different areas of the provision of services covered by the Rules.
128. It follows that Hungary cannot rely on the rights of parents to raise their children in accordance with their personal convictions either as a reason of public interest or as a fundamental right of parents protected by the Charter.
129. Hungary has also put forward an additional argument in relation to the Commission’s allegation of the breach of Article 21 of the Charter. It invokes the judgment in WABE (69) in order to assert that the right of parents to ensure the education of their children in conformity with their religious, philosophical or pedagogical convictions can justify the difference in treatment.
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133. Accordingly, Rules 1, 3, 4, 6 and 7 violate Articles 21, 11 and 7 of the Charter.
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134. According to the Explanations of the Charter relating to Article 1, human dignity is not only a fundamental right in itself, but constitutes the real basis of other fundamental rights. Protection from discrimination, freedom of expression and the right to private life are the more concrete expressions of human dignity as expressed in the Charter. (70)
135. The Explanations also state that the dignity of the human person is part of the substance of other rights laid down in the Charter and it must therefore be respected, even when those other rights are restricted.
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139. I therefore consider that because Hungary has failed to provide justification for interfering with the fundamental rights that are an expression of human dignity, Rules 1, 3, 4, 6 and 7 violate Article 1 of the Charter.
140. In conclusion, by adopting Rules 1, 3, 4, 6 and 7, Hungary has violated Articles 1, 7, 11 and 21 of the Charter.
141. This brings me to the still unresolved issue as to whether and under what conditions findings of the infringement of several provisions of EU primary and secondary law, as well as of Charter-based rights, could lead to a self-standing finding of an infringement of Article 2 TEU.
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Paragraphs referring to EU Charter (original language)