EU unmoved by Hungary's response to scrutiny of anti-LGBTQI legislation

In its regular package of infringement decisions, the European Commission pursues legal action against Member States for failing to comply with their obligations under EU law. These decisions, covering various sectors and EU policy areas, aim to ensure the proper application of EU law for the benefit of citizens and businesses.

The key decisions taken by the Commission and affecting Hungary are presented below.

Commission calls on Hungary to fully and correctly transpose EU law criminalising hate speech and hate crimes

The Commission has decided to open infringement proceedings (by sending letters of formal notice) against Germany, Hungary and Luxembourg as

their national laws do not fully or accurately transpose EU rules on combating racism and xenophobia by means of criminal law.

The aim of the Framework Decision is to ensure that serious manifestations of racism and xenophobia, such as public incitement to violence or hatred, are punishable by effective, proportionate and dissuasive criminal penalties throughout the European Union.

At present, Germany and Hungary fail to criminalise a specific form of hate speech mentioned in the Framework Decision. In particular, the Hungarian legal framework fails to criminalise the public condoning, denial or gross trivialisation of international crimes, while the German legal system fails to criminalise the public denial or gross trivialisation of these crimes. In addition, both Hungary and Luxembourg have failed to take the necessary measures to ensure racist and xenophobic hate crimes are effectively criminalised.

The Hungarian legal framework does not ensure that a racist and xenophobic motivation is considered an aggravating circumstance or that such motivation is taken into account by national courts for any crime committed.

The Luxembourgish legal framework has not established any legal provision ensuring that a racist and xenophobic motivation can be taken into account by the courts when deciding on the penalties.

The three Member States have two months to take the necessary measures and to address the shortcomings identified by the Commission. Failing this, the Commission may decide to take the next step in the infringement procedure, by sending a reasoned opinion.

The Commission has already launched infringements on this instrument against ten Member States and continues to assess the transposition of this Framework Decision in other Member States as part of its effort to address racism and xenophobia. For more information about the measures to combat racism and xenophobia, click here.

Commission urges Hungary to respect the fundamental rights of non-discrimination of LGBTIQ people and freedom of expression

Today, the Commission decided to take the next step in the infringement procedure against Hungary on the disclaimer, which was imposed on a children's book with LGBTIQ content.

The Hungarian Consumer Protection Authority recently obliged the publisher of a book for children, presenting LGBITQ people, to include a disclaimer that the book depicts forms of ‘behaviour deviating from traditional gender roles'. The Commission considers that by imposing an obligation to provide information on a divergence from ‘traditional gender roles', Hungary

• restricts the freedom of expression of authors and book publishers (Article 11 of the EU Charter of Fundamental Rights);
• discriminates on grounds of sexual orientation in an unjustified way (Article 21 of the EU Charter of Fundamental Rights), and
• incorrectly applies the EU rules on unfair commercial practices (Directive 2005/29/EC).

The Commission opened the infringement procedure against Hungary in July 2021, by sending a letter of formal notice. After careful analysis of the reply from Hungary, the Commission considers that 

the concerns have not been addressed. Hungary failed to justify the restrictions imposed on the fundamental rights of non-discrimination and freedom of expression.

This is why the Commission decided to send a reasoned opinion to Hungary, which now has two months to reply and remedy the situation. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union.

The Commission calls on Hungary to comply with EU laws in the context of banning LGBTIQ content

The Commission has decided to send a reasoned opinion to Hungary with regard to their national rules that

seek to prohibit or limit access to content that portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality' for individuals under 18 years of age.

The Commission launched the infringement procedure by sending a letter of formal notice to Hungary on this subject on 15 July 2021.

The Commission considers that these national rules run contrary to a number of EU laws, including the standards in the Audiovisual Media Services Directive for audio-visual content and the free provision of cross-border audiovisual media services as the Hungarian rules put in place unjustified restrictions that discriminate against people based on their sexual orientation and are moreover disproportionate.

The Commission also raised concerns with regard to the e-Commerce Directive, as provisions of the Hungarian rules infringe the country of origin principle. The law restricts the provision of services displaying content portraying different sexual orientations to minors, including when these services originate from other Member States, and Hungary failed to justify these restrictions.

The Commission believes that in these fields falling into the area of application of EU law, the Hungarian provisions also violate human dignity, freedom of expression and information, the right to respect of private life as well as the right to non-discrimination

as enshrined respectively in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights.

The Commission did not find the response of the Hungarian authorities to the Commission's letter of formal notice to be satisfactory.

Hungary has now two months to remedy the situation and reply to the arguments raised by the Commission in the reasoned opinion. If it fails to do so, the Commission may decide to refer the case to the Court of Justice of the European Union.

Commission calls on Hungary to accept European Electronic Toll Service (EETS) providers in its market

The Commission today decided to send a reasoned opinion to Hungary, for its failure to fulfil its obligations under Directive 2004/52/EC, Decision 2009/750/EC and Directive (EU) 2019/520. Specifically, Hungary has failed to ensure that toll chargers accept EETS providers on their toll domains, and that the relevant accreditation processes for EETS providers in its market are launched and concluded.

The European rules play a key role in the creation of a common market for EETS services in Europe, as well as in ensuring interoperability for users. They require the conclusion of contractual negotiations between the Toll Chargers and the service providers without delay to safeguard fair and non-discriminatory access to the tolling market for EETS providers.

In December 2020, the Commission sent a letter of formal notice and is now following up with a reasoned opinion. Hungary has two months to reply to the arguments raised by the Commission. Otherwise, the Commission may decide to refer Hungary to the Court of Justice of the European Union.

The Commission calls on Hungary to comply with EU electronic communications rules

The Commission decided to send a reasoned opinion to Hungary regarding a decision made by the Hungarian Media Council to reject Klubradio's application for the use of radio spectrum on highly questionable grounds.

The conditions attached to the use of radio spectrum and procedures to grant, prolong, renew or revoke those rights are subject to EU telecoms rules, set out in the European Electronic Communications Code (Directive (EU) 2018/1972). Key elements of these rules are the principles of proportionality and non-discrimination.

The Commission believes that the decisions of the Hungarian Media Council to refuse renewal of Klubradio's rights were disproportionate and non-transparent and thus in breach of EU law.

The Commission also considers that the Hungarian national media law has been applied in a discriminatory way in this particular case. The Commission opened the infringement procedure by sending a letter of formal notice on 9 June 2021 to the Hungarian authorities, and the response sent by the Hungarian authorities did not satisfy the concerns raised by the Commission.

If Hungary does not bring its decision in line with EU telecoms rules within 2 months, the Commission may decide to refer the case to the Court of Justice of the European Union.

Cover photo by Hans-Peter Merten