The Silent Majority Has Found Its Voice

Under the pretext of allegedly protecting children, the Hungarian parliament adopted legislation in 2021 that prohibits depictions of homosexuality and gender reassignment in any media and material accessible to minors. The so-called Child Protection Act obnoxiously conflates pedophilia with homosexuality and effectively allows the Hungarian authorities to restrict any content that has any depiction of homosexuality and other sexual identities and orientations that deviate from the heterosexual norm whatsoever.

This Tuesday, 19 November 2024, the European Commission, the European Parliament and 16 Member States gathered in Luxemburg to join in a lawsuit against the Hungarian Child Protection Act. We spoke with two experts who were closely following the hearing, John Morijn, a Fellow at Hertie School Berlin and a Professor at the University of Groningen, and Luke Dimitrios Spieker, a Postdoctoral Researcher at Humboldt University in Berlin and a Senior Research Fellow at the Max Planck Institute in Heidelberg.

1. The Hungarian Child Protection Act directly and straight-forwardly discriminates and stigmatizes minorities based on sexual orientation and gender identities. After the hearing in Luxembourg, what is your main takeaway?

Luke: We see European legal history in the making. It is absolutely unprecedented that 16 Member States have joined the Commission’s side. Symbolically, this sends the clear message that the Hungarian course of action constitutes a frontal and deep attack against European society.

Politically, the Member States’ interventions indicate an important shift. So far, they did not take a very active role in countering illiberal developments throughout the Union. The infringement procedure against Hungary can herald a change in this respect. Invoking Article 2 TEU as a self-standing plea is an innovation advanced by the Commission’s legal service and prepared by an entire community of legal entrepreneurs. This community includes now the intervening Member States as well.

Indeed, this comes as a surprise. Usually, when the Court makes a jurisprudential leap toward further integration, the Member States rather seek to shield their legal orders. In the present case, however, the Member States affirmed the legally binding nature of EU values as the very identity of the EU legal order and even made suggestions for its further development, namely the justiciability of Article 2 TEU.

John: It was powerful to witness a silent majority finally speaking up. This moment is a testament to the tireless advocacy efforts of NGOs like RECLAIM, working with Member States to make it happen. I felt shivers down my spine. Yet, for me, it’s far too early to say whether this was more than a one-off.

I would love to hear Von der Leyen publicly state in a press conference what the Commission’s legal agents told the Court. Lawyers often view the world through the lens of legal procedures and rulings. But if you’re a gay person living in Budapest, it’s perfectly reasonable to ask: What took so long? And why isn’t there any immediate action to stop this from happening tomorrow?

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2. The subject matter clearly falls under the EU Charter and its straightforward prohibition of discrimination. Yet, the hearing was much about Article 2 TEU postulating the common European values. Why do you think that Article 2 TEU should be part of the solution here?

Luke: During the hearing, four considerations came to the fore that justify an additional litigation of Article 2 TEU violations.

First, Article 2 TEU has a signaling function. It clearly demonstrates that we witness a violation beyond the ordinary acquis and its day-to-day application: the measures under review strike to the very core of European society.

Second, Article 2 TEU can have an impact on sanctions. Establishing a violation under Article 2 TEU justifies higher fines (Article 260 TFEU). This impact has been recently demonstrated when the Court of Justice ordered Hungary to pay an unprecedented lump sum of 200 Mio EUR and a daily penalty payment of 1 Mio EUR until it complies with a previous decision on the treatment of refugees.

Third, an established breach can facilitate subsequent state liability procedures brought by affected individuals before national courts which requires a manifest disregard of EU law.

Finally, a violation of Article 2 TEU in infringement proceedings can have an effect on other procedures at the European level such as Article 7 TEU procedure and a suspension of mutual recognition in the European Arrest Warrant proceedings. Additionally, and this was not mentioned during the hearing, non-compliance with the judgment under Article 2 TEU could lead to freezing EU funds under the conditionality regimes.

John: The Commission will win, as everyone – including in Budapest – knows. This is an open-and-shut violation of internal market rules. So, from the very beginning the only relevant question was always: how?

More particularly, to deliberately use non-legal visuals, why one would add three additional tomatoes (the particular norms under the Charter, human dignity in general, and EU values under Article 2 TEU) to an already sufficient internal-market-hamburger? And what happens when the burger goes away (as in the LexNGO case)? Can the tomatoes constitute a freestanding argument?

What happens if Hungary remedy the underlying internal market problem but adopt a similar measure which essentially has the same intent and effect? The hearing suggests that the Court is invited to refer to Article 2 TEU to indicate the spirit and the overall magnitude of a violation.

Yet, how to define this general standard? How can one prevent finding a completely open-ended violation? And should this be limited to infringement cases only? These questions are much bigger, constitutionally, than the current issue we are facing with one Member State.

3. What is the distinction between the European values under Article 2 TEU and human dignity under Article 1 of the EU Charter?

Luke: First off, there is no clear-cut distinction between human dignity under Article 2 TEU and Article 1 of the Charter – both are inevitably connected. Still, Charter rights and common values seem to have different functions in the EU legal order. While Charter rights are subjective rights that are usually invoked in individual cases, the values in Article 2 TEU have a structural function in the Union. Mutual trust, for instance, is not immediately based on compliance with the Charter, but relies – as stipulated in Opinion 2/13 – on the premise that all Member States share the set of common values enshrined in Article 2 TEU. This structural facet is expressed rather through Article 2 TEU than specific Charter rights.

John: According to the Commission, and supported by many Member States, equating sexual orientation, which is natural, with paedophilia, which is a crime, constitutes inexcusable stigmatization and unacceptable stereotyping that must be condemned in the strongest terms. Extending this violation beyond concrete norms under the Charter and connecting it with human dignity under Article 1 of the Charter and especially European values under Article 2 TEU therefore indicates this broader and deeper nature of violations.

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4. Why is Hungary doing this? Does Hungary have a different vision of an illiberal society, or is this simply Orbán’s political game to capitalize on the Brussels enemies?

Luke: Hungary’s main narrative during the case was twofold: First, it submitted that it should be the parent’s choice, if, when, and how their children should be exposed to LGBTIQ* content. Without any scientific evidence, Hungary claims that such an exposure entails a risk of a harm for the development of children. Importantly, Hungary argued that it does not need to prove the existence of such harm by referring to the “precautionary principle”, which is usually applied to dangerous products. It seems clear that this parallel between dangerous products and human identities can hardly be squared with human dignity itself.

What lurks behind all this? True believe in a traditional, conservative, Christian family values? Or rather the need for a common enemy, which is easy to identify – the LGBTIQ* community? Or maybe both? I guess, only Orbán knows…

John: Orbán and his clan are not ideological at all. Their imaginary enemy changes quite often. One of Orbán’s closest political allies was caught with his pants down on a Brussels rain pipe (not because he is gay and was having a good time at a sex party, but because he had been ignoring COVID-rules). This politician is still part of the clan. So, the LGBTIQ* community is unfortunate to be currently the subject of the perennial quest to blame someone else for your own failures in “us” v. “them” politics.

However, I do not want to downplay the seriousness of Orbán’s actions. In fact, I have more sympathy for people with honestly held strong ideological views with which I strongly disagree than for people who cynically instrumentalise underbelly rhetoric vis-à-vis a vulnerable group as a political decoy. This is extremely damaging for many ordinary fellow EU citizens in Hungary, and we should do everything to support them.

5. One might argue that this is not essentially a legal problem, and even if it were, the Commission should have acted much sooner. How do you view this criticism?

Luke: At first glance, it seems odd that the Commission stresses the gravity of the violation by referring to Article 2 TEU but does not find the case urgent enough to apply for interim measures. However, this case is a novelty. For the first time, we are seeing Article 2 TEU used as the legal basis for infringement proceedings.

When deciding on interim measures, the Court must already establish the applicable legal standards. As such, the Court would have been forced to pronounce itself on the justiciability of Article 2 TEU already in interim proceedings. In such a context, the Commission would not have been able to muster the impressive support by the other Member States it had during the hearing. This support is crucial for the legitimacy of the legal development. Still, the Commission could have applied for an expedited procedure under Article 23a of the Court’s Statute and 133 of its Rules of Procedure.

John: For me, when defending pre-agreed and clearly binding values, legal action should be a last resort, used only when ordinary politics has failed. Even then, it should be applied in a way that allows politics to still work toward preventing the need for full legal recourse. Let us not forget that, for most Member States, the balance between political and legal protection of values still holds.

But this is not the case when a Member State is deliberately undermining democracy at home while trying to retain its privileges at the EU level, enjoying rights without fulfilling obligations. In such instances, one would expect the political response from EU institutions and other Member States to become firmer and more determined. However, in reacting to backsliding Member States, we often see the opposite. Legal action is treated as a replacement for political action, justifying total political inaction while awaiting a judicial decision.

The Court needs political backing, and the remarkable and unprecedented support from Member States for European values, as witnessed on Tuesday, gives us hope. The silent majority has finally found its voice.

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Editor’s Pick

by ANJA BOSSOW

Americans live in echo chambers. Key to their creation has been Fox News – a propaganda tool first for the Republican party and now the Trump campaign, masquerading as a news channel. First created by Rupert Murdoch and media consultant Roger Ailes in the 90s as the conservative underdog in a news landscape supposedly dominated by left-leaning liberal elites, Fox has been the number one network in basic cable for the last eight years.

In Slate’s newest season of Slow Burn, journalist Josh Levin chronicles the channel’s seemingly unstoppable rise, its role in key political inflection points such as the 2000 election and the Obama administration as well as attempts to resist its distortion of the role of the media in a democracy. For those who wish to understand why America is what it is today, why it votes the way it does, one needs to understand Fox News. Its rise is a case study of why democracies die when the “fourth branch” of government is captured by corporate actors.

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The Week on Verfassungsblog

…summarised by EVA MARIA BREDLER

The week ends with a bang: The ICC issues arrest warrants for Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant. But Israel is not only suspected of violating international (criminal) law. Two weeks ago, the Knesset passed a law that empowers the Minister of the Interior to deport Israeli citizens who are family members of terrorists to Gaza – possibly contravening both Israeli constitutional law and international law. ANJA BOSSOW and STAV ZEITOUNI (EN) expose the underlying logic as a wider phenomenon: instrumentalizing security concerns not just to deny minority rights but to attack the very foundations of a constitutional system – especially the legitimacy of constitutional courts.

While Germany’s recent migration policy restrictions also raised legal concerns, at least the rule of law seems to hold. Maybe even to a fault, argues EMIL KRUDE (GER) the political debate increasingly resembles a pure legalistic discourse, creating the illusion that calls for harsher policies can simply be dismissed by pointing to higher-ranking laws. He draws lessons from the migration debate to suggest a more effective defence of the legal order.

Pretty effective was the defence in the first Greek asylum case that made its way to Luxembourg. In a rare win, the CJEU has limited abusive uses of the safe third country concept. INES AVELAS and ARON BOSMAN (EN) set out the practical effects of the judgment on people applying for asylum in Greece and beyond.

Borders are also the source of conflict between Armenia and Azerbaijan. The Nagorno-Karabakh region is internationally recognized as part of Azerbaijan but historically populated by ethnic Armenians. In October 2024, both countries approved a Protocol regulating the joint work of their respective border delimitation commissions after a decision by Armenia’s Constitutional Court greenlit peace talks. However, the Court sidestepped clarifying territorial claims against Azerbaijan. TABIB HUSEYNOV (EN) argues the Court should have rejected any irredentist claims under Armenia’s Constitution.

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Two weeks have passed since Donald Trump won the 2024 US presidential election in a landslide – a good cause to use f- and s-words, but not the ones you might have in mind. DAVID PRESSLEIN (EN) advocates using federalism and (state) sovereignty for progressive purposes and maps their role in shielding Democrat states from federal overreach.

At least the US electoral institutions seem to have held. In Venezuela, it’s a different story. MARYSABEL RODRIGUEZ TORRES (EN) reconstructs how Venezuela restricted the work of Electoral Observation Missions that were able to confirm irregularities in the last election. How the Venezuelan state reacts to international pressure will be critical in determining the country’s fate – whether toward entrenched authoritarianism or peaceful recovery of democratic institutions.

Georgia is another case in point. The Georgian Dream Party has been declared the winner of the parliamentary election although independent observers identified large-scale election-rigging, sparking widespread protests. In face of the lack of effective judicial oversight, NINO TSERETELI (EN) calls for immediate civic resistance and external pressure – the window to act is closing fast.

Speaking of effective judicial oversight: The recent proposal for a constitutional amendment in Brazil weakens constitutional review by allowing Congress to suspend certain decisions of the Supreme Federal Court. Amidst widespread criticism of the proposal, BRUNO SANTOS CUNHA and ANDRE BORGES ULIANO (EN) offer a different view. They identify some criticisms as premature and explore how models of weak judicial review may foster constitutional dialogues and collaboration.

Brazil also has a history of dam ruptures. In 2019, a dam collapse in Brumadinho killed 270 people and devastated the environment. The dam was owned by the mining company Vale, and the German TÜV Süd audited its safety. More than five years later, no one has been held accountable. ARTHUR BONIFÁCIO GARCIA (EN) outlines Brazil’s human rights responsibility and demands legal consequences for private companies.

A lack of legal consequences caused a surge of protests in India, where people are demanding stricter laws on violence against women after several high-profile cases. ANKITA GANDHI (EN) advocates for a feminist approach focused on restorative justice instead of punitive measures, shame, or stigma, arguing as a “feminist killjoy … but with a heart”.

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After Germany’s coalition collapse, many draft bills will never see the light of day. One of them regards the extension of a rent control measure (“Mietpreisbremse”). SELMA GATHER (GER) shows how upending the control could have existential consequences for tenants and why the Bundestag must act now to make rent control permanent.

Another bill in legal limbo is the planned reform of parentage law which was intended to introduce automatic co-motherhood for families with two mothers. Under the current law, they must go through stepchild adoption – a lengthy and burdensome process fraught with legal uncertainty and invasive screenings – despite fulfilling every parental requirement that a father would only need to meet one of. In R.F. and others v. Germany, the ECtHR now found the law to neither violate Article 8 nor Article 14 ECHR. LUCY CHEBOUT (GER) explains why the ECtHR misses the mark here.

We’re reading about “the” ECtHR, knowing perfectly well that there is no such thing: it is an assemblage of very different human beings acting in concert as “the Court”. ALICE MARGARIA and CATHERINE VAN DE GRAAF (EN) spoke with former ECtHR Vice-President Prof. Dr. Angelika Nußberger and current ECtHR Judge Dr. Kateřina Šimáčková about “The Visible and The Invisible of Justice in Strasbourg”: about the Court as a “House of Stories” rather than a “Palace of Justice”, about recent procedural reforms affecting access to justice, gender balance on the bench, and their own personal legacies.

Speaking of personal legacies: You have the chance to leave one today, by clicking on that lovely button right here:

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That’s it for this week! Take care and all the best.

Yours,

the Verfassungsblog Editorial Team

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