Hungarian law conflating homosexuals with pedophiles infringes EU law, Advocate General of CJEU says

The Hungarian law on “stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children", constitutes an infringement of EU law, the Advocate General of the Court of Justice of the European Union said on Thursday. The opinion is not binding on either party, but it is generally considered to be an indication of the final ruling.

The European Commission launched infringement proceedings against Hungary in 2021 in response to the adoption of the anti-LGBT law. The procedure, which is used in cases of late or incorrect application of EU law, or in cases of deliberate infringement, consists of two rounds of back and forth correspondence, but as this did not produce a result in this case, the EU body filed a lawsuit with the European Court of Justice in December 2022.

The European Commission asked the court to rule that the Hungarian authorities had violated their obligations arising from EU law. According to the body, they did so on three levels: primary and secondary law relating to the internal market in services, as well as the General Data Protection Regulation (‘GDPR’); several rights of the EU Charter of Fundamental Rights (‘the Charter’); and Article 2 TEU.

The latter is enforced by the “Article 7 procedure,” which is currently only being conducted against the Hungarian authorities, and in which the member states' ministers for EU affairs heard their Hungarian colleague just last week. On Thursday, Advocate General Tamara Ćapeta recommended that the court rule that the action is well founded on all grounds and that the court also declare a a self-standing infringement by a Member State of Article 2 TEU, which sets out the fundamental values on which the European Union is founded.

According to the opinion, the Hungarian government "has not offered any proof of the potential risk of harm of the content, which portrays ordinary lives of LGBTI people to the healthy development of minors.

Consequently,

those amendments are based on a value judgment that homosexual and non-cisgender life is not of equal value or status as heterosexual and cisgender life."

At last week's hearing, 20 governments called on Hungary to review its anti-LGBTQI measures. Fifteen EU countries have now joined the lawsuit.

The proceedings are being fast-tracked at the request of the European Commission. Following their visit to Budapest in April, a group of MEPs asked the European Commission to propose interim measures in this case due to the upcoming legislation against Pride being held in public spaces. The European Commission has not done so.

If the final ruling finds the Hungarian authorities guilty but the legislation remains unchanged, another lawsuit may follow, this time seeking a financial penalty.