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 opinion:
In the light of the foregoing considerations, I propose that the Court:
(1) 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
1. By the present action, the Commission asks the Court to declare that Hungary has infringed EU law through amendments to various instruments of domestic legislation that were introduced by ‘Law LXXIX of 2021 adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children’ (‘the Amending Law’). (2)
2. Several of those amendments, which were, according to Hungary, introduced with the aim of protecting minors, prohibit or restrict access to content that portrays or promotes ‘gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality’ (for the sake of brevity, I will occasionally refer to such content as ‘LGBTI content’ (3)).
3. According to the Commission, the amendments at issue infringe EU law on three levels: first, they infringe several instruments of secondary law relating to the provision of services and Article 56 TFEU; second, the amendments contravene rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’); (4) finally, the amendments also infringe Article 2 TEU, which sets out the fundamental values on which the European Union is founded.
4. This last claim that Hungary has breached Article 2 TEU as a self-standing plea for a finding of an infringement of EU law is novel. It raises important questions, such as whether that provision is justiciable in infringement proceedings and when precisely the Court should declare that there has been an infringement of Article 2 TEU, in addition to breaches of the rules on the internal market and of the Charter. The Court, therefore, has decided to hear this case in its plenary formation.
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.
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.
A. The crux of the dispute
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.
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.
B. The Commission’s fifth plea – Infringement of the Charter rights
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).
61. Article 21 of the Charter prohibits discrimination, among other grounds, on the basis of sex and sexual orientation.
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, 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.
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.
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.
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.
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.
104. In that light, Hungary states that the interference with fundamental rights is justified by the aims of the contested legislation the protection of the healthy development of minors and of the rights of parents to raise their children according to their personal convictions.
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.
115. Translated into legal language of proportionality, two conclusions are possible. First, it can be stated that Hungary lacks an acceptable reason of general interest which it can offer as a justification for its interference with the three Charter rights invoked by the Commission. If that is the case, then it is unnecessary to apply subsequent steps of proportionality review as no justification is possible. Alternatively, we can accept the need to protect healthy development of children as a more abstract reason of general interest. However, in that case, the Rules at issue fail the proportionality test, as they are neither adequate nor necessary for the protection of children from possible harm to their physical, mental or moral development.
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’. 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 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.
133. Accordingly, Rules 1, 3, 4, 6 and 7 violate Articles 21, 11 and 7 of the Charter.
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.
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.
142. By its sixth plea, the Commission asks the Court to declare that, by adopting the Amending Law, which resulted in Rules 1, 3, 4, 6 and 7, Hungary, in addition to breaching specific provisions of EU primary and secondary law and several provisions of the Charter, has infringed Article 2 TEU.
143. Hungary denies the possibility that an infringement of Article 2 TEU can be found separately from that of other EU rules. In its view, it is ‘inconceivable that a State would be condemned by the Court of Justice solely on the basis of Article 2 TEU, without that Court declaring a violation of some other specific obligation envisaged by Union law.’
144. Inasmuch as this argument opposes an autonomous reliance on Article 2 TEU, it is irrelevant. As I have stated at the beginning of my analysis, in the present case, it is not necessary to engage with the possibility of reliance on Article 2 TEU outside of the scope of EU law. The Commission raised the plea of infringement of Article 2 TEU within the scope of EU law, after requesting that the Court find that infringements of the Treaty, of several instruments of EU secondary law, as well as of the Charter had occurred.
145. Hungary further submits that Article 2 TEU cannot be used as a self-standing legal plea for an infringement action within the scope of EU law. That Member State contends that the very fact that the Commission links the infringement of Article 2 TEU to the infringement of concrete provisions of EU law and of the Charter is an argument that Article 2 TEU cannot be used as a self-standing ground of infringement. It offers a number of other arguments, which I will address in the rest of this section of the Opinion.
146. Those arguments present the Court with the first important question: is Article 2 TEU a type of provision on which one could rely in infringement proceedings? More generally, the question is whether a claim alleging a breach of values is justiciable; can such a claim be decided by courts at all, or is that a matter to be decided by the political process?
147. If Article 2 TEU is justiciable, the next question that arises is about the criteria that should guide the Court in deciding whether a self-standing breach of Article 2 TEU has occurred. The participants to these proceedings agree that the application of Article 2 TEU can be triggered only exceptionally, when the breach is of a certain level of seriousness. In the context of the case at hand, it is important to distinguish the situations in which violations of fundamental rights also lead to an infringement of Article 2 TEU from those in which, despite the finding of violations of the Charter or of other fundamental principles of EU law, the Court should refrain from declaring that an infringement of Article 2 TEU has occurred.
207. That does not mean that the Court is adding flesh on the bones arbitrarily and in a vacuum. As already explained, the values are given fuller expression in a number of more concrete principles contained in the Treaties, in the Charter and in the provisions of EU secondary law, which is a result of the legislative process, and which involves all Member States. Concretisation of values is thus the result of a dialogue about the meaning of values either at the level of primary or secondary law.
208. In a series of judgments, beginning with the Portuguese judges, the Court considered that the value of the rule of law is concretised by the second subparagraph of Article 19(1) TEU. In the cases that followed, the Court developed a more detailed understanding of the requirement of independence of judges as concretising, through Article 19 TEU and Article 47 of the Charter, the value of the rule of law. Similarly, the Court interpreted Article 10(1) TEU, which provides that the Union functions on the basis of representative democracy, in the light of democracy as a value expressed in Article 2 TEU. Similarly, the value of equality is concretised in Article 19 TFEU and instruments of secondary law adopted on its basis.
213. In any case, in the circumstances of the present case, the Court is asked to find a breach of Article 2 TEU after it establishes that the contentious Rules also breach EU legislation and certain fundamental rights of the Charter. These rules give more concrete expression to the values of Article 2 TEU that are at issue in the present case: human dignity, equality and the respect for human rights. Therefore, the substantive content of the values involved is already largely concretised.
227. It is therefore legitimate to ask how a finding of an infringement of Article 2 TEU, in addition to a finding of an infringement of particular provisions of EU legislation and of the Charter, contributes to the identification and termination of the failure of a Member State to fulfil its obligations under EU law.
228. Similar questions have already been asked in relation to the purpose of finding a breach of the Charter in cases in which the infringement of a Treaty rule or of EU secondary law is already established. In that respect, in her Opinion in Commission v Hungary (Higher education), Advocate General Kokott offered the following explanation: ‘the finding of a separate breach of a fundamental right has no particular repercussions in this case, as the action for failure to fulfil obligations is already well founded on account of the infringements of the Services Directive and Article 49 TFEU. The separate examination of fundamental rights nevertheless reflects the particular significance and nature of the infringement more clearly.’ (117)
229. Similar reasoning could be applied also to justify why the Commission could ask for a self-standing finding of an infringement of Article 2 TEU, even if the finding of a breach of other EU law provisions and of the Charter would suffice to establish the failure of a Member State to fulfil its EU law-based obligations.
244. The Court should therefore assess whether the violation of fundamental rights, as protected by the Charter, results from a Member State’s negation of a value enshrined in Article 2 TEU.
245. Other than the negation of values as the criterion, I do not consider that a more precise formula can be developed in abstracto as a tool that can be used by the Court.
246. However, the number of the breaches of EU primary and secondary rules, and of the Charter, as well as the way in which those breaches were committed, may serve as indicators that the root of those violations may lie in the negation of values.
248. Individual infringements, especially if they concern fundamental rights or other fundamental principles of EU law, could thus be an important indication that the cause of disrespect of EU law lies in the negation of values. That is particularly so, if such breaches are numerous, blatant and generalised. However, even that in itself, in my opinion, does not necessarily suffice for finding a breach of Article 2 TEU, as the violations of Charter rights might be a part of the EU constitutional dialogue, and not of the negation of values.
254. A finding of an infringement of Article 2 TEU should be made only if the Court concludes that a Member State has breached a Charter right because it has negated the value which that right concretises.
257. The finding that the contested legislation restricts the free movement of services in multiple ways, and even more significantly, the finding that four rights guaranteed by the Charter have been violated by those same Rules, are indeed a strong indication of a possible infringement of Article 2 TEU.
268. First, the breach of Article 21 of the Charter, consisting in discrimination of members of a minority LGBTI group and their stigmatisation and marginalisation, is in sharp contradiction with the values of equality and tolerance, as well as human dignity.
269. Second, the breach of the freedom of expression and information, guaranteed by Article 11 of the Charter, contravenes an essential foundation of a pluralist, democratic society, as envisaged in Article 2 TEU, which is the necessary prerequisite for equality and human dignity.
270. Third, the breach of the right to private and family life, protected by Article 7 of the Charter, stands in stark contrast to the value of human dignity.
309. As it was explained earlier, those rules are not in compliance with Union law, as they restrict the provision of AVM services and infringe several fundamental rights guaranteed by the Charter without any acceptable justification. That is to say, a national provision that infringes Article 6a(1) of the AVMS Directive cannot constitute such a ‘more detailed or stricter’ rule within the meaning of Article 4(2) thereof, since a rule based on an infringement of that directive cannot constitute a legitimate implementation of the Article 4 exception.
327. Such restrictions cannot be justified because they lack viable justifications on grounds of public interest and violate several rights protected by the Charter, as demonstrated earlier.
339. For identical reasons to those provided in respect of Rules 1, 3, 4, 5 and 6, Rule 7 contravenes fundamental rights, notably Article 21 of the Charter, and cannot therefore be justified.
341. The Commission claims that Rule 8, contained in the Law on the criminal records system, infringes Article 10 of the GDPR in conjunction with Article 8(2) of the Charter.
345. As a preliminary point, the objective pursued by the GDPR, as provided for in Article 1 and in recitals 1 and 10 thereof, consists, inter alia, in ensuring a high level of protection of the fundamental rights and freedoms of natural persons, in particular their right to privacy with respect to the processing of personal data, as enshrined in Article 8(1) of the Charter and Article 16(1) TFEU, which, similarly, grant all individuals the right to protection of their personal data. Specifically for this purpose, the GDPR provides that any processing of personal data must comply with the principles relating to the processing of data established in Article 5 of the GDPR. In order for the processing to be lawful, one of the conditions listed in Article 6 of that regulation must be satisfied.
347. The Court has clarified that the GDPR does not impose an absolute ban on public authorities disclosing personal data, as long as the disclosure serves a legitimate public interest and includes adequate protection for data subjects’ rights and freedoms. (151) In the same vein, Article 8(2) of the Charter states that personal data must, inter alia, be processed ‘for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law’.
358. In my view, a self-declaration of necessity is incompatible with Article 10 of the GDPR and Article 8 of the Charter, and lends itself to a discretionary application.
359. Therefore, the conditions set by Rule 8 and other provisions of the Law on the criminal records system do not constitute sufficient safeguards for the purposes of the provisions of the GDPR and of Article 8 of the Charter.
360. Therefore, Rule 8 infringes Article 10 of the GDPR and Article 8(2) of the Charter, as claimed by the Commission.
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Paragraphs referring to EU Charter (original language)