Renáta Uitz (Central European University)
The European Parliament adopted a resolution on July 8, 2021 in response to the Hungarian law that, among others, prohibits the propaganda of homosexuality in media and in education. The new law received considerable attention in Europe, triggering condemnation from both European constitutional actors and several national governments. The Parliament set out its concerns on the very day when this new law entered into force, and before the Venice Commission could do so: while – in its opinion of July 2-3, 2021 – the Venice Commission expressed serious concerns about the latest amendments to the Hungarian Fundamental Law crafting the constitutional basis for the ban on the propaganda of homosexuality, it was not able to assess the statutory ban itself due to ‘significant delay’ with obtaining a translation (para. 1). The speed and comprehensiveness of the Parliament’s response illustrates its commitment to boosting the capacity of the Union to defend its foundations (despite being effectively locked out of two Article 7 TEU proceedings pending (frozen) in the Council).
The EP’s July 8 resolution is significant in two respects. First, it is a rapid and elaborate response, formulating concerns about the new law with a view to the broader context in which this new measure is situated on both the national and the European levels. It treats the new Hungarian law as one in a series of measures rolling back legal protection against discrimination on the basis of sexual orientation and gender identity.
Second, the July 8 resolution conceptualizes the European response with a view to the wider framework of addressing the risk of constitutional retrogression in the Union. In doing so it seeks to cement the role of the European Parliament as a proactive guardian of the constitutional foundations of the Union, in the spirit envisioned in Article 7 TEU. This becomes apparent when the July 8 resolution is read in conjunction with the Parliament’s response in a resolution passed on June 24, 2021 to the Commission’s first Union-wide report on the rule of law. These resolutions confirm the capacity of the Parliament to present a compelling narrative frame that boosts the careful legal characterizations used by the Commission and the CJEU to address illiberal practices. This is an especially important development at the time when the rule of law crisis enters into a new phase, wherein the ambitions of illiberal democrats are phrased in terms of defending Christian values and the human rights of traditional families.
The Hungarian ban on the propaganda of homosexuality
According to its title, the new Hungarian law adopted on Jun 25, 2021 aims to protect children from pedophilia (Act no. LXXIX of 2021). And so it creates a national register of offenders convicted for crimes against children’s sexuality or sexual morality, and attaches specific adverse consequences to conviction for such offences.
In addition, the new law prohibits the dissemination of content that ‘promotes departures from identity corresponding to biological sex at birth, change or sex and homosexuality’ in mass media (via regular programming or advertising) and in schools (with special attention to sex education). To do so, it amends various statutes that affect the protection, upbringing and education of children. The content of sex education courses has to be in line with the requirements of the Fundamental Law, in particular, its recently amended Article XVI(1) that provides: “Hungary shall protect the right of children to a self-identity corresponding to their sex at birth, and shall ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of our country.” To ensure the streamlining of sex education courses, the new law creates an official register of sex education programs (courses) offered by external providers that schools will be restricted to choose from in the future.
The Hungarian government insists on the rights of Member States to protect the rights of children, traditional families, and the freedom of opinion of families. Hungarian Minister of Justice Judit Varga took to Twitter to defend, in particular, the value to “guarantee the undisturbed upbringing of our children free of any sexual lobby interference.” Minister Varga and several other government representatives insist that the new law bans only the propaganda of homosexuality, and not mentioning or discussing homosexuality. To illustrate the distinction and the Hungarian government’s respect for fundamental rights, Minister Varga invited critics to join the Pride march in July 2021.
The EP’s July 8 resolution: adjusting the frame
President von der Leyen’s passionate defense of a European Union “where you are free to love who you want, and I believe in a European Union that embraces diversity” was followed by a letter from the Commission (Ares S(2021) 4587976) addressed to the Hungarian Minister of Justice. The letter sets out the Commission’s concerns in terms of the violation of certain Charter rights (such as the prohibition of discrimination on the basis of sex and sexual orientation, freedom of expression, and private and family life), the freedom to provide services (Article 56 TFEU), the Audio-Visual Medial Services Directive and the e-Commerce Directive, and the free movement of goods (Articles 34-36 TEU).
The Parliament’s July 8 resolution accounts for these distinct violations of (mostly) secondary EU law also in terms of the Union’s founding values under Article 2 TEU and the Charter (Recitals J-K para. 1, esp. paras. 25-26). When addressing the violation of fundamental rights under the Charter, the Parliament echoes the CJEU’s recent emphasis (e.g. in C‑78/18, Commission v Hungary) on the predictable future adverse impact and chilling effect of deliberately vague legal rules (Recital C).
Furthermore, from the outset the July 8 resolution places the Hungarian ban in the broader context of recent challenges to LGBTQI rights in the Union by national governments [recitals D-G], and points out that it is reminiscent of Russian laws [Recital H]. The European Court of Human Rights found in 2017 Bayev v. Russia that these bans violate human rights, and emphasized that “adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society” (para. 83). In 2020 in Beizaras and Levickas the ECtHR added that the rights of a minority group “cannot be made conditional on its being accepted by the majority” (para. 123, also para. 125).
The Parliament recalled Hungary’s recent policy stances in the Council [recital B], complemented by a detailed account of constitutional and legal changes and administrative measures (esp. para. 9, 11, 14-169 challenging the “concept of gender” and curbing the rights of sexual minorities in the name of protecting the rights of children and traditional families in order to preserve Hungarian constitutional identity based on Christian values (para. 11). In the words of the Venice Commission, such recent Hungarian developments constitute “a general trend of exclusion and degradation of non-heterosexual persons in Hungary” (para. 29). When assessing the latest constitutional amendment, the Venice Commission warned that “there is a real and immediate danger that the amendments will further strengthen an attitude according to which non-heterosexual lifestyles are seen as inferior, and that they will further fuel a hostile and stigmatising atmosphere against LGBTQI people” (para. 30). Ultimately, the Parliament found that these trends to amount to “state-sponsored discrimination against minorities” (para. 24, emphasis added).
The Parliament’s concern about state-sponsored discrimination against minorities in Hungary is hardly overstated. Following a heated exchange with President von der Leyen, on July 6, 2021 the Hungarian government reiterated its disapproval of the Commission’s initial reaction in a resolution [1438/2021 (VII. 6.) Korm. hat.] on the harsh and antidemocratic criticism directed at Hungary. The government resolution accuses certain Member States of following their old colonial instincts and calls out “certain European bureaucrats” for “using Community law to fight ideological battles” in a manner that violates the principle of sincere cooperation. It confirms the determination of the Hungarian government to defend itself by all means available under European law. It seizes the opportunity to declare that “hate speech targeting Hungary is also prohibited!” The government resolution emphasizes the need to fully respect “the national and constitutional sovereignty, autonomy” of Member States. In its closing paragraph it rejects attempts by “the self-appointed apostles of liberal democracy” to replace Hungarian parents in the upbringing of Hungarian children.
While the Hungarian government resolution does not create individual rights or obligations directly, it is a befitting illustration of government speech that seeks to intimidate through reinforcing the moral and value preferences of a political majority in a manner that is not compatible with founding values of the Union or the protection of fundamental human rights in the European constitutional order.
Parliament as a proactive guardian of the Union’s constitutional foundations
With the July 8 resolution, the Parliament established itself as a proactive guardian of the founding values and constitutional foundations of the Union, in the spirit of Article 7 TEU, and the more recent commitment enshrined in attempts to condition access to EU funds to respect for the Union’s founding values.
This very spirit was already reflected in the Parliament’s resolution on June 24, 2021 on the Commission’s 2020 rule of law report. In a set of critical comments, the Parliament warned about the risk of trivializing the violation of the rule of law and urged a genuine comparison across Member States that distinguishes between systemic and one-time violations of the rule of law, and offers a more nuanced analysis on a scale of serious deficiency, risk of a serious breach and actual breach (para. 4).
The July 8 EP resolution aims to attach swift and meaningful consequences to such a blatant violation of founding values and fundamental human rights under EU law, putting to use several tools from the toolbox developed to address the rule of law crisis. Accordingly, the Parliament urged both the Commission (para. 3) and the Member States to take action (see para. 4) to use the most efficient procedural tools available to them in order to tackle a violation of EU law and founding values. Essentially the Parliament is encouraging Member States to convert their political statements criticizing the Hungarian ban into legal action.
For its own part, the July 8 EP resolution demonstrates what it takes to activate the new Rule of Law Conditionality Regulation to protect the Union’s budget from violations of the rule of law and the horizontal enabling condition attached to respect for Charter rights featured in the Common Provisions Regulation (Article 9) that set the terms of accessing EU funds. In the words of the July 8 resolution “state-sponsored discrimination against minorities has a direct impact on which projects the Member States decide to spend EU money on, and therefore directly affects the protection of the financial interests of the Union” (para. 24, emphasis added). And so the Parliament called on the Commission to trigger Article 6(1) of the Rule of Law Conditionality Regulation (para. 24.); to cut the Hungarian government’s access to funding until its full compliance with the horizontal enabling condition with respect of the Charter is secured under the Common Provisions Regulation (para. 25) and assurances are in place with regard to access to funds under the Recovery and Resilience Plan (para. 26). Although the Rule of Law Conditionality Regulation was challenged by the Hungarian (C-156/21) and Polish governments (C-157621) before the CJEU — in line with the agreement reached at the time of its adoption –, the outcome of this case has no bearing on the application of the other measures.
The July 8 EP resolution provides invaluable assistance for activating these processes by compiling a comprehensive guide that traces the background and context of problematic Hungarian measures. Providing references to relevant sources does not only provide access to parliamentary reasoning, it also has an important transparency function that can be translated into constitutional accountability on both the national and European level. The Parliament has done an excellent job in making the Commission’s responses to national developments more transparent (and, accidentally, more timely). The pressure to see formal responses national governments give to the Commission’s queries (Recital K) is to be seen in light of the demand to assert their constitutional accountability.
The July 8 EP resolution makes several important contributions to addressing the rapidly unfolding war on the concept of gender, in the name of defending Christian values (and illiberal Christian democracy).
First, it forcefully counters the misappropriation of human rights language to defend the value preferences of the political majority. The Parliament confirmed its “unwavering commitment to defending children’s rights” and at the same time rejected the Hungarian government’s “clear attempt to instrumentalise human rights language in order to enact discriminatory policies” (para. 17). Such clarity will be increasingly important in responding to efforts that seek to protect the rights of families and women to the effect of impairing gender equality or women’s reproductive rights championed by several Member States in the name of defending Christian value (and illiberal Christian democracy).
Second, the July 8 EP resolution (para. 18) draws attention to a recent judgement of the CJEU that offers a new perspective – and potentially a new approach – on addressing a key feature of the rule of law crisis: constitutional retrogression. While the principle of non-retrogression is familiar from the area of socio-economic rights, it is far from well-developed as a general principle of human rights law. (Not to mention, it is a really contentious terrain in EU law ever since C-399/11, Melloni). Recently, in the Maltese judges’ case, the CJEU addressed the issue of constitutional retrogression on the level of ground principles, reading Article 2 TEU in conjunction with Article 49 TEU. The CJEU asserted that a Member State’s decision to join the Union is an instance of constitutional pre-commitment (C-896/19, Reppublika v. Il-Prim Ministru, para.s 60-61). According to the CJEU, a Member State’s free and voluntary commitment to the Union’s founding values at the time of accession entails that a Member State cannot amend its constitution after accession to the effect of reducing the existing protection its constitution provides to the Union’s founding values (para. 63). The consequences of viewing EU accession as a gesture of pre-commitment to the Union’s founding values are significant for boosting the capacity of EU institutions to address illiberal democratic backsliding, as it opens up both the possibility of testing respect for the founding values outside the (severely compromised) framework of Article 7 TEU, and the ways of addressing departures from – and violations of – founding values under the Treaties.
The rapidly unfurling war on the concept of gender in the name of defending Christian values (and illiberal Christian democracy) provides ample opportunity not only for rejecting the misappropriation of human rights, but also for recasting the debate in terms of pre-commitment. The consequences of embedding pre-commitment in constitutional interpretation are well illustrated in the judgment of the Romanian Constitutional Court that found a statutory ban on “spreading the theory of opinion of gender identity” in public schools unconstitutional in December 2020. The Constitutional Court referred to ECtHR jurisprudence and several elements of the EU acquis to demonstrate the transformation of the meaning of constitutional equality protection since EU accession; it concluded that combating gender stereotypes has been attached to the traditional approach the roles of men and women in society (para. 76). What gives constitutional significance to such developments in EU secondary law on the national level is the pre-commitment to upholding the founding values of the Union embedded in the decision to join the EU. (As a side note, the Romanian judgment demonstrates the significance of unblocking the legislative process on the Horizontal Discrimination Directive, urged by the July 8 EP resolution (para. 21).)
In short, the Parliament in two recent resolutions demonstrated its capacity and resolve to stand up to the architects of illiberal Christian democracy. It also invited EU institutions and Member States to step up, and outlined several urgent – and very doable – tasks to this effect. This is a promising development, even as we enter the second decade of illiberal democratic awakening in the EU. May the future of the EU take a more differentiated path, it will still need reliable foundations and dependable guardians. And even differentiation cannot excuse supporting the state-sponsored discrimination of minorities with additional EU funds.
Renáta Uitz is Professor of Comparative Constitutional Law at the Central European University, Vienna and associated researcher at its Democracy Institute, Budapest.
The views expressed in this article reflect only the position of the author and not necessarily the one of the BRIDGE Network Blog.