Provisional text
JUDGMENT OF THE COURT (Full Court)
21 April 2026 (*)
Table of Contents
I.
Legal context
A.
International law
B.
European Union law
1.
Primary law
(a)
The EU Treaty
(b)
The FEU Treaty
(c)
The Charter
2.
Secondary law
(a)
Directive 2000/31
(b)
Directive 2006/123
(c)
Directive 2010/13
(d)
Directive 2015/1535
(e)
Directive 2018/1808
(f)
The GDPR
C.
Hungarian law
1.
The Basic Law of Hungary
2.
The Hungarian Civil Code
3.
The Law on the Protection of Children
4.
The Law on Commercial Advertising
5.
The Law on Media Services
6.
The Law on the Criminal Records System
7.
The Law on Public Education
II.
Pre-litigation procedure and procedure before the Court
III.
The action
A.
First, second, third and fifth pleas in law, alleging infringements of Directive 2000/31, Directive 2006/123, Directive 2010/13 and Article 56 TFEU, as well as Articles 1, 7, 11 and 21 of the Charter
1.
First plea in law, alleging infringements of Directive 2010/13
(a)
Infringement of Article 6a(1) of Directive 2010/13
(1)
Arguments of the parties
(2)
Findings of the Court
(b)
Infringement of Article 2 and Article 3(1) of Directive 2010/13
(1)
Arguments of the parties
(2)
Findings of the Court
(c)
Infringement of Article 9(1)(c)(ii) of Directive 2010/13
(1)
Arguments of the parties
(2)
Findings of the Court
(d)
Conclusion
2.
Second plea in law, alleging infringements of Article 3(2) of Directive 2000/31
(a)
Whether there is a restriction for the purposes of Article 3(2) of Directive 2000/31
(1)
Paragraph 6/A of the Law on the Protection of Children
(i)
Arguments of the parties
(ii)
Findings of the Court
(2)
Paragraph 8(1a) of the Law on Commercial Advertising
(i)
Arguments of the parties
(ii)
Findings of the Court
(b)
Whether the restrictions in question may be justified under Article 3(4) of Directive 2000/31
(1)
Arguments of the parties
(2)
Findings of the Court
(c)
Conclusion
3.
Third plea in law, alleging infringements of Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU
(a)
Whether there is a restriction for the purposes of Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU
(1)
Paragraph 6/A of the Law on the Protection of Children
(i)
Arguments of the parties
(ii)
Findings of the Court
(2)
Paragraph 8(1a) of the Law on Commercial Advertising
(i)
Arguments of the parties
(ii)
Findings of the Court
(3)
Paragraph 9(12) of the Law on Public Education
(i)
Arguments of the parties
(ii)
Findings of the Court
(b)
Whether the restrictions may be justified under Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU
(1)
Arguments of the parties
(2)
Findings of the Court
(c)
Conclusion
4.
Fifth plea in law, alleging infringements of Articles 1, 7, 11 and 21 of the Charter
(a)
Whether the Charter is applicable to Paragraph 6/A of the Law on the Protection of Children and Paragraph 9(12) of the Law on Public Education
(b)
Whether there has been a failure to fulfil the obligations arising under Article 21 of the Charter
(c)
Whether there are limitations on the rights and freedoms guaranteed under Articles 7 and 11 of the Charter
(1)
Whether there is a limitation of the right to respect for private and family life guaranteed under Article 7 of the Charter
(i)
Arguments of the parties
(ii)
Findings of the Court
(2)
Whether there is a limitation of the freedom of expression guaranteed under Article 11 of the Charter
(i)
Arguments of the parties
(ii)
Findings of the Court
(d)
Whether limitations of the rights and freedoms guaranteed under Articles 7 and 11 of the Charter are justified
(e)
Whether Article 1 of the Charter has been infringed
(1)
Arguments of the parties
(2)
Findings of the Court
(f)
Conclusion
B.
Sixth plea in law, alleging infringement of Article 2 TEU
1.
Arguments of the parties
2.
Findings of the Court
(a)
The binding nature of Article 2 TEU
(b)
Failure to fulfil obligations under Article 2 TEU
C.
Fourth plea in law, alleging infringements of Article 10 of the GDPR and Article 8(2) of the Charter
1.
Arguments of the parties
2.
Findings of the Court
IV.
Costs
( Failure of a Member State to fulfil obligations – Article 258 TFEU – National legislation introducing restrictions in relation to deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, with a view to protecting children – Directives 2000/31/EC, 2006/123/EC, 2010/13/EU – Regulation (EU) 2016/679 – Restrictions on sex education – Principle of non-discrimination – Values of the European Union as enshrined in Article 2 TEU – Reliance on a breach of those values in an action for failure to fulfil obligations – Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union – Protection of personal data )
In Case C‑769/22,
ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 19 December 2022,
European Commission, represented initially by V. Di Bucci, L. Malferrari, J. Tomkin and K. Talabér-Ritz, and subsequently by D. Calleja Crespo, L. Malferrari, J. Tomkin and K. Talabér-Ritz, acting as Agents,
applicant,
supported by:
Kingdom of Belgium, represented by C. Jacob, M. Jacobs, C. Pochet, A. Van Baelen and L. Van den Broeck, acting as Agents,
Kingdom of Denmark, represented by D. Elkan, J. Farver Kronborg and C.A.‑S. Maertens, acting as Agents,
Federal Republic of Germany, represented by J. Möller, R. Kanitz and N. Scheffel, acting as Agents,
Republic of Estonia, represented by H. Hirsik and M. Kriisa, acting as Agents,
Ireland, represented initially by M. Browne, Chief State Solicitor, A. Joyce, M. Lane and D. O’Reilly, acting as Agents, and subsequently by M. Browne, Chief State Solicitor, R. Fanning, Attorney General, A. Burke and A. Joyce, acting as Agents, and by B. Quigley, Senior Counsel, and S. Brittain, Barrister-at-Law,
Hellenic Republic, represented by K. Boskovits, acting as Agent,
Kingdom of Spain, represented by A. Gavela Llopis, A. Pérez-Zurita Gutiérrez and J. Ruiz Sánchez, acting as Agents,
French Republic, represented initially by B. Fodda, E. Leclerc and T. Stéhelin, and subsequently by B. Fodda and T. Stéhelin, acting as Agents,
Grand Duchy of Luxembourg, represented by A. Germeaux and T. Schell, acting as Agents, and by P.-E. Partsch, avocat,
Republic of Malta, represented by A. Buhagiar, acting as Agent, and by D. Sarmiento Ramírez-Escudero, abogado,
Kingdom of the Netherlands, represented by M.K. Bulterman, C.S. Schillemans and J. Langer, acting as Agents,
Republic of Austria, represented by A. Posch and J. Schmoll, acting as Agents,
Portuguese Republic, represented by P. Barros da Costa, L. Medeiros and A. Pimenta, acting as Agents,
Republic of Slovenia, represented by A. Vran, acting as Agent,
Republic of Finland, represented by H. Leppo, acting as Agent,
Kingdom of Sweden, represented initially by H. Eklinder, F.‑L. Göransson, C. Meyer‑Seitz, A.M. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, acting as Agents, and subsequently by H. Eklinder, F.-L. Göransson, C. Meyer‑Seitz, M. Salborn Hodgson, R. Shahsavan Eriksson and O. Simonsson, acting as Agents,
European Parliament, represented by G. Corstens, E. Paladini and A. Tamás, acting as Agents,
interveners,
v
Hungary, represented by M.Z. Fehér and K. Szíjjártó, acting as Agents,
defendant,
THE COURT (Full Court),
composed of K. Lenaerts, President, T. von Danwitz, Vice-President, F. Biltgen, K. Jürimäe, C. Lycourgos, I. Jarukaitis, M.L. Arastey Sahún (Rapporteur), I. Ziemele, J. Passer, O. Spineanu-Matei, M. Condinanzi and F. Schalin, Presidents of Chambers, S. Rodin, E. Regan, N. Piçarra, A. Kumin, N. Jääskinen, D. Gratsias, M. Gavalec, B. Smulders, S. Gervasoni, N. Fenger and R. Frendo, Judges,
Advocate General: T. Ćapeta,
Registrar: I. Illéssy, Administrator,
having regard to the written procedure and further to the hearing on 19 November 2024,
after hearing the Opinion of the Advocate General at the sitting on 5 June 2025,
gives the following
Judgment
1        By its application, the European Commission claims that the Court should:
(a)      find that, by adopting the a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. törvény (Law No LXXIX of 2021 laying down stricter measures in respect of persons convicted of paedophilia and amending certain laws adopted in the interests of the protection of children) of 15 June 2021 (Magyar Közlöny 2021/118) (‘the amending law’), Hungary has failed to fulfil its obligations under EU law, as follows:
(1)      –      by introducing Paragraph 6/A into the a gyermekek védelméről és a gyámügyi igazgatásról szóló 1997. évi XXXI. törvény (Law No XXXI of 1997 on the protection of children and the administration of guardianship) of 8 May 1997 (Magyar Közlöny 1997/39), which prohibits making available to minors content that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender 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’) (OJ 2000 L 178, p. 1), 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 (OJ 2006 L 376, p. 36), Article 56 TFEU, and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’),
–        by introducing Paragraph 8(1a) into the a gazdasági reklámtevékenység alapvető feltételeiről és egyes korlátairól szóló 2008. évi XLVIII. törvény (Law No XLVIII of 2008 laying down the basic requirements and certain restrictions applicable to commercial advertising activities) of 28 June 2008 (Magyar Közlöny 2008/95), which prohibits making available to minors advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender 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) (OJ 2010 L 95, p. 1), as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 (OJ 2018 L 303, p. 69) (‘Directive 2010/13’), Article 3(2) of Directive 2000/31, Articles 16 and 19 of Directive 2006/123, Article 56 TFEU, and Articles 1, 7, 11 and 21 of the Charter,
–        by introducing Paragraph 9(6) into the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. törvény (Law No CLXXXV of 2010 on media services and mass media communications) of 31 December 2010 (Magyar Közlöny 2010/202), which requires providers of linear media services to classify in Category V and, consequently, to broadcast only between the hours of 22:00 and 05:00 any programme having as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, and by adopting Paragraph 32(4a) of that law, which excludes from classification as a communication of public interest or message promoting awareness any programme having as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, Hungary has infringed Article 6a(1) of Directive 2010/13 and Articles 1, 7, 11 and 21 of the Charter,
–        by amending Paragraph 179(2) of Law No CLXXXV of 2010 on media services and mass media communications, which requires the Médiatanács (Media Council, Hungary) to request the Member State under whose jurisdiction the media service provider falls to take effective measures and to intervene in order to put an end to the infringements identified by the Media Council, Hungary has infringed Article 2 and Article 3(1) of Directive 2010/13,
–        by amending Paragraph 9(12) of the a  nemzeti köznevelésről szóló 2011. évi CXC. törvény (Law No CXC of 2011 on national public education) of 29 December 2011 (Magyar Közlöny 2011/162), which prohibits activities concerning sexual culture, sexual life, sexual orientation and sexual development from having the aim of promoting deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, Hungary has infringed Articles 16 and 19 of Directive 2006/123, Article 56 TFEU, and Articles 1, 7, 11 and 21 of the Charter,
(2)      by adopting the provisions referred to in point 1, Hungary has infringed Article 2 TEU;
(3)      by amending Paragraph 67(1)(a) to (d) of the a bűnügyi nyilvántartási rendszerről, az Európai Unió tagállamainak bíróságai által magyar állampolgárokkal szemben hozott ítéletek nyilvántartásáról, valamint a bűnügyi és rendészeti biometrikus adatok nyilvántartásáról szóló 2009. évi XLVII. törvény (Law No XLVII of 2009 on the criminal records system, the registration of judgments handed down by the courts of the Member States of the European Union against Hungarian citizens, and the registration of biometric data in criminal and law enforcement matters) of 19 June 2009 (Magyar Közlöny 2009/83), which obliges the body having direct access to registered data to make accessible to authorised persons the registered data of persons who have committed offences abusing the sexual freedom or sexual morality of 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) (OJ 2016 L 119, p. 1) (‘the GDPR’), as well as Article 8(2) of the Charter; and
(b)      order Hungary to pay the costs.
I.      Legal context
A.      International law
2        Article 4 of the European Convention on Transfrontier Television, signed in Strasbourg on 5 May 1989, stipulates:
‘The Parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 (“ECHR”),] and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention.’
3        Article 7(2) of that convention provides:
‘All items of programme services which are likely to impair the physical, mental or moral development of children and adolescents shall not be scheduled when, because of the time of transmission and reception, they are likely to watch them.’
B.      European Union law
1.      Primary law
(a)    The EU Treaty
4        Article 2 TEU provides:
‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
5        Article 4(2) and (3) TEU provides:
‘2.      The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
3.      Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’
6        Article 7 TEU states:
‘1.      On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.
The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2.      The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
3.      Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.
The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.
...’
7        Under the first subparagraph of Article 19(1) TEU:
‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.’
8        Article 49 TEU provides:
‘Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. …
…’
(b)    The FEU Treaty
9        Article 16(1) TFEU states:
‘Everyone has the right to the protection of personal data concerning them.’
10      Article 34 TFEU provides:
‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’
11      Article 36 TFEU provides:
‘The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.’
12      Under Article 56 TFEU:
‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.’
13      Article 57 TFEU is worded as follows:
‘Services shall be considered to be “services” within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
…’
14      Article 165 TFEU provides:
‘1.      The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
…’
15      Article 166(1) TFEU states:
‘The Union shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.’
16      Article 258 TFEU provides:
‘If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.’
(c)    The Charter
17      Article 1 of the Charter is worded as follows:
‘Human dignity is inviolable. It must be respected and protected.’
18      Article 7 of the Charter states:
‘Everyone has the right to respect for his or her private and family life, home and communications.’
19      Under Article 8 of the Charter:
‘1.      Everyone has the right to the protection of personal data concerning him or her.
2.      Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
…’
20      Article 11 of the Charter provides:
‘1.      Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2.      The freedom and pluralism of the media shall be respected.’
21      Article 14(3) of the Charter states:
‘The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.’
22      Under Article 20 of the Charter:
‘Everyone is equal before the law.’
23      Article 21 of the Charter reads as follows:
‘1.      Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
…’
24      Article 24 of the Charter provides:
‘1.      Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2.      In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
…’
25      Article 52 of the Charter states:
‘1.      Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
…
3.      In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
…’
2.      Secondary law
(a)    Directive 2000/31
26      Recitals 8, 10, 18, 21 and 22 of Directive 2000/31 state:
‘(8)      The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such.
...
(10)      In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market; where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as electronic commerce is concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular the protection of minors and human dignity, consumer protection and the protection of public health; according to [Article 152 EC, now Article 168 TFEU], the protection of public health is an essential component of other Community policies.
...
(18)      Information society services span a wide range of economic activities which take place on-line; these activities can, in particular, consist of selling goods on-line; activities such as the delivery of goods as such or the provision of services off-line are not covered; information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data; information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service; television broadcasting within the meaning of [Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23)] and radio broadcasting are not information society services because they are not provided at individual request; by contrast, services which are transmitted point to point, such as video-on-demand or the provision of commercial communications by electronic mail are information society services; the use of electronic mail or equivalent individual communications for instance by natural persons acting outside their trade, business or profession including their use for the conclusion of contracts between such persons is not an information society service; the contractual relationship between an employee and his employer is not an information society service; activities which by their very nature cannot be carried out at a distance and by electronic means, such as the statutory auditing of company accounts or medical advice requiring the physical examination of a patient are not information society services.
...
(21)      The scope of the coordinated field is without prejudice to future Community harmonisation relating to information society services and to future legislation adopted at national level in accordance with Community law; the coordinated field covers only requirements relating to on-line activities such as on-line information, on-line advertising, on-line shopping, on-line contracting and does not concern Member States’ legal requirements relating to goods such as safety standards, labelling obligations, or liability for goods, or Member States’ requirements relating to the delivery or the transport of goods, including the distribution of medicinal products; the coordinated field does not cover the exercise of rights of pre-emption by public authorities concerning certain goods such as works of art.
(22)      Information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives; to that end, it is necessary to ensure that the competent authority provides such protection not only for the citizens of its own country but for all Community citizens; in order to improve mutual trust between Member States, it is essential to state clearly this responsibility on the part of the Member State where the services originate; moreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established.’
27      Article 1 of that directive provides, in paragraphs 1 and 2 thereof:
‘1.      This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.
2.      This Directive approximates, to the extent necessary for the achievement of the objective set out in paragraph 1, certain national provisions on information society services relating to the internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States.’
28      Article 2 of Directive 2000/31 provides:
‘For the purpose of this Directive, the following terms shall bear the following meanings:
(a)      “information society services”: services within the meaning of [Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1)];
...
(h)      “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.
(i)      The coordinated field concerns requirements with which the service provider has to comply in respect of:
–        the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,
–        the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider;
(ii)      The coordinated field does not cover requirements such as:
–        requirements applicable to goods as such,
–        requirements applicable to the delivery of goods,
–        requirements applicable to services not provided by electronic means.’
29      Under Article 3 of that directive:
‘1.      Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.
2.      Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
3.      Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex.
4.      Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:
(a)      the measures shall be:
(i)      necessary for one of the following reasons:
–        public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons,
–        the protection of public health,
–        public security, including the safeguarding of national security and defence,
–        the protection of consumers, including investors;
(ii)      taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;
(iii)      proportionate to those objectives;
(b)      before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:
–        asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,
–        notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.
5.      Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph 1, indicating the reasons for which the Member State considers that there is urgency.
6.      Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.’
30      Article 4 of Directive 2000/31 provides:
‘1.      Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect.
2.      Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services ...’
(b)    Directive 2006/123
31      Recitals 7, 9 and 27 of Directive 2006/123 state:
‘(7)      This Directive establishes a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity or profession and its system of regulation. That framework is based on a dynamic and selective approach consisting in the removal, as a matter of priority, of barriers which may be dismantled quickly and, for the others, the launching of a process of evaluation, consultation and complementary harmonisation of specific issues, which will make possible the progressive and coordinated modernisation of national regulatory systems for service activities which is vital in order to achieve a genuine internal market for services by 2010. Provision should be made for a balanced mix of measures involving targeted harmonisation, administrative cooperation, the provision on the freedom to provide services and encouragement of the development of codes of conduct on certain issues. That coordination of national legislative regimes should ensure a high degree of Community legal integration and a high level of protection of general interest objectives, especially protection of consumers, which is vital in order to establish trust between Member States. This Directive also takes into account other general interest objectives, including the protection of the environment, public security and public health as well as the need to comply with labour law.
…
(9)      This Directive applies only to requirements which affect the access to, or the exercise of, a service activity. Therefore, it does not apply to requirements, such as road traffic rules, rules concerning the development or use of land, town and country planning, building standards as well as administrative penalties imposed for non-compliance with such rules which do not specifically regulate or specifically affect the service activity but have to be respected by providers in the course of carrying out their economic activity in the same way as by individuals acting in their private capacity.
…
(27)      This Directive should not cover those social services in the areas of housing, childcare and support to families and persons in need which are provided by the State at national, regional or local level by providers mandated by the State or by charities recognised as such by the State with the objective of ensuring support for those who are permanently or temporarily in a particular state of need because of their insufficient family income or total or partial lack of independence and for those who risk being marginalised. These services are essential in order to guarantee the fundamental right to human dignity and integrity and are a manifestation of the principles of social cohesion and solidarity and should not be affected by this Directive.’
32      Article 1(1) of that directive provides:
‘This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.’
33      Article 2(1) and (2) of Directive 2006/123 provides:
‘1.      This Directive shall apply to services supplied by providers established in a Member State.
2.      This Directive shall not apply to the following activities:
(a)      non-economic services of general interest;
...
(c)      electronic communications services and networks, and associated facilities and services, with respect to matters covered by Directives 2002/19/EC [of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7)], 2002/20/EC [of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21)], 2002/21/EC [of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33)], 2002/22/EC [of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51)] and 2002/58/EC [of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37)];
...
(g)      audiovisual services, including cinematographic services, whatever their mode of production, distribution and transmission, and radio broadcasting;
...
(i)      activities which are connected with the exercise of official authority as set out in [Article 45 EC, now Article 51 TFEU];
(j)      social services relating to social housing, childcare and support of families and persons permanently or temporarily in need which are provided by the State, by providers mandated by the State or by charities recognised as such by the State;
...’
34      Article 3(1) of that directive reads as follows:
‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. These include:
(a)      Directive 96/71/EC[ of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1)];
(b)      [Council] Regulation (EEC) No 1408/71[ of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1)];
(c)      [Directive 89/552];
(d)      Directive 2005/36/EC[ of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22)].’
35      Article 4 of Directive 2006/123 defines, in paragraphs 1 and 7 thereof respectively, a ‘service’ as any self-employed economic activity, normally provided for remuneration, as referred to in Article 57 TFEU, and a ‘requirement’ as, inter alia, any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States or in consequence of case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy.
36      Under Article 16 of that directive:
‘1.      Member States shall respect the right of providers to provide services in a Member State other than that in which they are established.
The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory.
Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles:
(a)      non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established;
(b)      necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment;
(c)      proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective.
2.      Member States may not restrict the freedom to provide services in the case of a provider established in another Member State by imposing any of the following requirements:
(a)      an obligation on the provider to have an establishment in their territory;
(b)      an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law;
(c)      a ban on the provider setting up a certain form or type of infrastructure in their territory, including an office or chambers, which the provider needs in order to supply the services in question;
(d)      the application of specific contractual arrangements between the provider and the recipient which prevent or restrict service provision by the self-employed;
(e)      an obligation on the provider to possess an identity document issued by its competent authorities specific to the exercise of a service activity;
(f)      requirements, except for those necessary for health and safety at work, which affect the use of equipment and material which are an integral part of the service provided;
(g)      restrictions on the freedom to provide the services referred to in Article 19.
3.      The Member State to which the provider moves shall not be prevented from imposing requirements with regard to the provision of a service activity, where they are justified for reasons of public policy, public security, public health or the protection of the environment and in accordance with paragraph 1. Nor shall that Member State be prevented from applying, in accordance with Community law, its rules on employment conditions, including those laid down in collective agreements.
...’
37      Article 19 of Directive 2006/123 provides:
‘Member States may not impose on a recipient requirements which restrict the use of a service supplied by a provider established in another Member State, in particular the following requirements:
(a)      an obligation to obtain authorisation from or to make a declaration to their competent authorities;
(b)      discriminatory limits on the grant of financial assistance by reason of the fact that the provider is established in another Member State or by reason of the location of the place at which the service is provided.’
(c)    Directive 2010/13
38      Recitals 11, 18, 31, 33, 41, 60, 83 and 104 of Directive 2010/13 state:
‘(11)      It is necessary, in order to avoid distortions of competition, improve legal certainty, help complete the internal market and facilitate the emergence of a single information area, that at least a basic tier of coordinated rules apply to all audiovisual media services, both television broadcasting (i.e. linear audiovisual media services) and on-demand audiovisual media services (i.e. non-linear audiovisual media services).
…
(18)      [Directive 2002/21] according to its Article 1(3) is without prejudice to measures taken at Union or national level to pursue general interest objectives, in particular relating to content regulation and audiovisual policy.
…
(31)      A wide definition of audiovisual commercial communication should be laid down in this Directive, which should not however include public service announcements and charity appeals broadcast free of charge.
…
(33)      The country of origin principle should be regarded as the core of this Directive, as it is essential for the creation of an internal market. This principle should be applied to all audiovisual media services in order to ensure legal certainty for media service providers as the necessary basis for new business models and the deployment of such services. It is also essential in order to ensure the free flow of information and audiovisual programmes in the internal market.
…
(41)      Member States should be able to apply more detailed or stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with general principles of Union law. …
…
(60)      Measures taken to protect the physical, mental and moral development of minors and human dignity should be carefully balanced with the fundamental right to freedom of expression as laid down in [the Charter]. The aim of those measures, such as the use of personal identification numbers (PIN codes), filtering systems or labelling, should thus be to ensure an adequate level of protection of the physical, mental and moral development of minors and human dignity, especially with regard to on-demand audiovisual media services. The Recommendation on the protection of minors and human dignity and on the right of reply already recognised the importance of filtering systems and labelling and included a number of possible measures for the benefit of minors, such as systematically supplying users with an effective, updatable and easy-to-use filtering system when they subscribe to an access provider or equipping the access to services specifically intended for children with automatic filtering systems.
…
(83)      In order to ensure that the interests of consumers as television viewers are fully and properly protected, it is essential for television advertising to be subject to a certain number of minimum rules and standards and that the Member States must maintain the right to set more detailed or stricter rules and in certain circumstances to lay down different conditions for television broadcasters under their jurisdiction.
…
(104)      Since the objectives of this Directive, namely the creation of an area without internal frontiers for audiovisual media services whilst ensuring at the same time a high level of protection of objectives of general interest, in particular the protection of minors and human dignity as well as promoting the rights of persons with disabilities, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.’
39      Article 1(1) of that directive provides:
‘For the purposes of this Directive, the following definitions shall apply:
(a)      “audiovisual media service” means:
(i)      a service as defined by Articles 56 and 57 [TFEU], where the principal purpose of the service or a dissociable section thereof is devoted to providing programmes, under the editorial responsibility of a media service provider, to the general public, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of [Directive 2002/21]; such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph;
(ii)      audiovisual commercial communication;
…
(d)      “media service provider” means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;
…
(h)      “audiovisual commercial communication” means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person pursuing an economic activity; such images accompany, or are included in, a programme or user-generated video in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement;
(i)      “television advertising” means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment;
…’
40      Article 2 of Directive 2010/13 provides:
‘1.      Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.
…’
41      Article 3(1) and (2) of that directive reads as follows:
‘1.      Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive.
2.      A Member State may provisionally derogate from paragraph 1 of this Article where an audiovisual media service provided by a media service provider under the jurisdiction of another Member State manifestly, seriously and gravely infringes point (a) of Article 6(1) or Article 6a(1) or prejudices or presents a serious and grave risk of prejudice to public health.
The derogation referred to in the first subparagraph shall be subject to the following conditions:
(a)      during the previous 12 months, the media service provider has on at least two prior occasions already performed one or more instances of conduct described in the first subparagraph;
(b)      the Member State concerned has notified the media service provider, the Member State having jurisdiction over that provider and the Commission in writing of the alleged infringements and of the proportionate measures it intends to take should any such infringement occur again;
(c)      the Member State concerned has respected the right of defence of the media service provider and, in particular, has given that provider the opportunity to express its views on the alleged infringements; and
(d)      consultations with the Member State having jurisdiction over the media service provider and the Commission have not resulted in an amicable settlement within one month of the Commission’s receipt of the notification referred to in point (b).
Within three months of the receipt of the notification of the measures taken by the Member State concerned and after having requested [the European Regulators Group for Audiovisual Media Services (ERGA)] to provide an opinion in accordance with point (d) of Article 30b(3), the Commission shall take a decision on whether those measures are compatible with Union law. …’
42      Under Article 4 of Directive 2010/13:
‘1.      Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive, provided that such rules are in compliance with Union law.
2.      Where a Member State:
(a)      has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; and
(b)      assesses that a media service provider under the jurisdiction of another Member State provides an audiovisual media service which is wholly or mostly directed towards its territory,
it may request the Member State having jurisdiction to address any problems identified in relation to this paragraph. Both Member States shall cooperate sincerely and swiftly with a view to achieving a mutually satisfactory solution.
Upon receiving a substantiated request under the first subparagraph, the Member State having jurisdiction shall request the media service provider to comply with the rules of general public interest in question. The Member State having jurisdiction shall regularly inform the requesting Member State of the steps taken to address the problems identified. Within two months of the receipt of the request, the Member State having jurisdiction shall inform the requesting Member State and the Commission of the results obtained and explain the reasons where a solution could not be found.
Either Member State may invite the Contact Committee to examine the case at any time.
3.      The Member State concerned may adopt appropriate measures against the media service provider concerned where:
(a)      it assesses that the results achieved through the application of paragraph 2 are not satisfactory; and
(b)      it has adduced evidence showing that the media service provider in question has established itself in the Member State having jurisdiction in order to circumvent the stricter rules, in the fields coordinated by this Directive, which would be applicable to it if it were established in the Member State concerned; such evidence shall allow for such circumvention to be reasonably established, without the need to prove the media service provider’s intention to circumvent those stricter rules.
Such measures shall be objectively necessary, applied in a non-discriminatory manner and proportionate to the objectives which they pursue.
4.      A Member State may take measures pursuant to paragraph 3 only where the following conditions are met:
(a)      it has notified the Commission and the Member State in which the media service provider is established of its intention to take such measures while substantiating the grounds on which it bases its assessment;
(b)      it has respected the rights of defence of the media service provider concerned and, in particular, has given that media service provider the opportunity to express its views on the alleged circumvention and the measures the notifying Member State intends to take; and
(c)      the Commission has decided, after having requested ERGA to provide an opinion in accordance with point (d) of Article 30b(3), that the measures are compatible with Union law, in particular that assessments made by the Member State taking the measures under paragraphs 2 and 3 of this Article are correctly founded; the Commission shall keep the Contact Committee duly informed.
5.      Within three months of the receipt of the notification provided for in point (a) of paragraph 4, the Commission shall take the decision on whether those measures are compatible with Union law. Where the Commission decides that those measures are not compatible with Union law, it shall require the Member State concerned to refrain from taking the intended measures.
If the Commission lacks information necessary to take the decision pursuant to the first subparagraph, it shall, within one month of the receipt of the notification, request from the Member State concerned all information necessary to reach that decision. The time limit within which the Commission is to take the decision shall be suspended until that Member State has provided such necessary information. In any case, the suspension of the time limit shall not last longer than one month.
6.      Member States shall, by appropriate means, ensure, within the framework of their national law, that media service providers under their jurisdiction effectively comply with this Directive.
7.      [Directive 2000/31] shall apply unless otherwise provided for in this Directive. In the event of a conflict between [Directive 2000/31] and this Directive, this Directive shall prevail, unless otherwise provided for in this Directive.’
43      Article 6(1)(a) of that directive provides:
‘Without prejudice to the obligation of Member States to respect and protect human dignity, Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any:
(a)      incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter’.
44      Article 6a of Directive 2010/13 provides:
‘1.      Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of the programme.
The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures.
…’
45      Article 9(1)(c) and (g) of that directive reads as follows:
‘Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
…
(c)      audiovisual commercial communications shall not:
(i)      prejudice respect for human dignity;
(ii)      include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
(iii)      encourage behaviour prejudicial to health or safety;
(iv)      encourage behaviour grossly prejudicial to the protection of the environment;
…
(g)      audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.’
46      Under Article 28b of Directive 2010/13:
‘1.      Without prejudice to Articles 12 to 15 of [Directive 2000/31], Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect:
(a)      minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1);
(b)      the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter;
(c)      the general public from programmes, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offence under Union law, namely public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541 [of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ 2017 L 88, p. 6)], offences concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council [of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1)] and offences concerning racism and xenophobia as set out in Article 1 of [Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ 2008 L 328, p. 55)].
2.      Member States shall ensure that video-sharing platform providers under their jurisdiction comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are marketed, sold or arranged by those video-sharing platform providers.
Member States shall ensure that the video-sharing platform providers under their jurisdiction take appropriate measures to comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are not marketed, sold or arranged by those video-sharing platform providers, taking into account the limited control exercised by those video-sharing platforms over those audiovisual commercial communications.
Member States shall ensure that video-sharing platform providers clearly inform users where programmes and user-generated videos contain audiovisual commercial communications, provided that such communications are declared under point (c) of the third subparagraph of paragraph 3 or the provider has knowledge of that fact.
Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a(1) aiming at effectively reducing the exposure of children to audiovisual commercial communications for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended. Those codes shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
3.      For the purposes of paragraphs 1 and 2, the appropriate measures shall be determined in light of the nature of the content in question, the harm it may cause, the characteristics of the category of persons to be protected as well as the rights and legitimate interests at stake, including those of the video-sharing platform providers and the users having created or uploaded the content as well as the general public interest.
Member States shall ensure that all video-sharing platform providers under their jurisdiction apply such measures. Those measures shall be practicable and proportionate, taking into account the size of the video-sharing platform service and the nature of the service that is provided. Those measures shall not lead to any ex-ante control measures or upload-filtering of content which do not comply with Article 15 of [Directive 2000/31]. For the purposes of the protection of minors, provided for in point (a) of paragraph 1 of this Article, the most harmful content shall be subject to the strictest access control measures.
Those measures shall consist of, as appropriate:
(a)      including and applying in the terms and conditions of the video-sharing platform services the requirements referred to in paragraph 1;
(b)      including and applying in the terms and conditions of the video-sharing platform services the requirements set out in Article 9(1) for audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform providers;
(c)      having a functionality for users who upload user-generated videos to declare whether such videos contain audiovisual commercial communications as far as they know or can be reasonably expected to know;
(d)      establishing and operating transparent and user-friendly mechanisms for users of a video-sharing platform to report or flag to the video-sharing platform provider concerned the content referred to in paragraph 1 provided on its platform;
(e)      establishing and operating systems through which video-sharing platform providers explain to users of video-sharing platforms what effect has been given to the reporting and flagging referred to in point (d);
(f)      establishing and operating age verification systems for users of video-sharing platforms with respect to content which may impair the physical, mental or moral development of minors;
(g)      establishing and operating easy-to-use systems allowing users of video-sharing platforms to rate the content referred to in paragraph 1;
(h)      providing for parental control systems that are under the control of the end-user with respect to content which may impair the physical, mental or moral development of minors;
(i)      establishing and operating transparent, easy-to-use and effective procedures for the handling and resolution of users’ complaints to the video-sharing platform provider in relation to the implementation of the measures referred to in points (d) to (h);
(j)      providing for effective media literacy measures and tools and raising users’ awareness of those measures and tools.
Personal data of minors collected or otherwise generated by video-sharing platform providers pursuant to points (f) and (h) of the third subparagraph shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising.
4.      For the purposes of the implementation of the measures referred to in paragraphs 1 and 3 of this Article, Member States shall encourage the use of co-regulation as provided for in Article 4a(1).
5.      Member States shall establish the necessary mechanisms to assess the appropriateness of the measures referred to in paragraph 3 taken by video-sharing platform providers. Member States shall entrust the assessment of those measures to the national regulatory authorities or bodies.
6.      Member States may impose on video-sharing platform providers measures that are more detailed or stricter than the measures referred to in paragraph 3 of this Article. When adopting such measures, Member States shall comply with the requirements set out by applicable Union law, such as those set out in Articles 12 to 15 of [Directive 2000/31] or Article 25 of [Directive 2011/93].
7.      Member States shall ensure that out-of-court redress mechanisms are available for the settlement of disputes between users and video-sharing platform providers relating to the application of paragraphs 1 and 3. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law.
8.      Member States shall ensure that users can assert their rights before a court in relation to video-sharing platform providers pursuant to paragraphs 1 and 3.
9.      The Commission shall encourage video-sharing platform providers to exchange best practices on co-regulatory codes of conduct referred to in paragraph 4.
10.      Member States and the Commission may foster self-regulation through Union codes of conduct referred to in Article 4a(2).’
(d)    Directive 2015/1535
47      Article 1(1)(b) of Directive 2015/1535 defines a ‘service’ as ‘any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.
48      Article 5(1) of that directive provides:
‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.
Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned to the Commission, should knowledge of such text be necessary to assess the implications of the draft technical regulation.
Member States shall communicate the draft technical regulation again to the Commission under the conditions set out in the first and second subparagraphs of this paragraph if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
…
The Commission shall immediately notify the other Member States of the draft technical regulation and all documents which have been forwarded to it; it may also refer this draft, for an opinion, to the Committee referred to in Article 2 of this Directive and, where appropriate, to the committee responsible for the field in question.
With respect to the technical specifications or other requirements or rules on services referred to in point (iii) of the second subparagraph of point (f) of Article 1(1) of this Directive, the comments or detailed opinions of the Commission or Member States may concern only aspects which may hinder trade or, in respect of rules on services, the free movement of services or the freedom of establishment of service operators and not the fiscal or financial aspects of the measure.’
(e)    Directive 2018/1808
49      Recital 20 of Directive 2018/1808 states:
‘The appropriate measures for the protection of minors applicable to television broadcasting services should also apply to on-demand audiovisual media services. That should increase the level of protection. The minimum harmonisation approach allows Member States to develop a higher degree of protection [against] content which may impair the physical, mental or moral development of minors. The most harmful content, which may impair the physical, mental or moral development of minors, but is not necessarily a criminal offence, should be subject to the strictest measures such as encryption and effective parental controls, without prejudice to the adoption of stricter measures by Member States.’
(f)    The GDPR
50      Recitals 1, 4, 10 and 154 of the GDPR state:
‘(1)      The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of [the Charter] and Article 16(1) [TFEU] provide that everyone has the right to the protection of personal data concerning him or her.
…
(4)      The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity.
…
(10)      In order to ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union. Regarding the processing of personal data for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Member States should be allowed to maintain or introduce national provisions to further specify the application of the rules of this Regulation. In conjunction with the general and horizontal law on data protection implementing Directive 95/46/EC [of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)], Member States have several sector-specific laws in areas that need more specific provisions. This Regulation also provides a margin of manoeuvre for Member States to specify its rules, including for the processing of special categories of personal data (“sensitive data”). To that extent, this Regulation does not exclude Member State law that sets out the circumstances for specific processing situations, including determining more precisely the conditions under which the processing of personal data is lawful.
…
(154)      This Regulation allows the principle of public access to official documents to be taken into account when applying this Regulation. Public access to official documents may be considered to be in the public interest. Personal data in documents held by a public authority or a public body should be able to be publicly disclosed by that authority or body if the disclosure is provided for by Union or Member State law to which the public authority or public body is subject. Such laws should reconcile public access to official documents and the reuse of public sector information with the right to the protection of personal data and may therefore provide for the necessary reconciliation with the right to the protection of personal data pursuant to this Regulation. The reference to public authorities and bodies should in that context include all authorities or other bodies covered by Member State law on public access to documents. Directive 2003/98/EC of the European Parliament and of the Council [of 17 November 2003 on the re-use of public sector information (OJ 2003 L 345, p. 90)] leaves intact and in no way affects the level of protection of natural persons with regard to the processing of personal data under the provisions of Union and Member State law, and in particular does not alter the obligations and rights set out in this Regulation. In particular, that Directive should not apply to documents to which access is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been provided for by law as being incompatible with the law concerning the protection of natural persons with regard to the processing of personal data.’
51      Article 1 of the GDPR provides:
‘1.      This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data.
2.      This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.
3.      The free movement of personal data within the Union shall be neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data.’
52      Article 5 of that regulation provides:
‘1.      Personal data shall be:
(a)      processed lawfully, fairly and in a transparent manner in relation to the data subject (“lawfulness, fairness and transparency”);
…
(f)      processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (“integrity and confidentiality”).
…’
53      Article 6 of the GDPR reads as follows:
‘1.      Processing shall be lawful only if and to the extent that at least one of the following applies:
(a)      the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
(b)      processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
(c)      processing is necessary for compliance with a legal obligation to which the controller is subject;
(d)      processing is necessary in order to protect the vital interests of the data subject or of another natural person;
(e)      processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f)      processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.
…’
54      Under Article 10 of that regulation:
‘Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.’
55      Article 24 of the GDPR provides:
‘1.      Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary.
2.      Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.
3.      Adherence to approved codes of conduct as referred to in Article 40 or approved certification mechanisms as referred to in Article 42 may be used as an element by which to demonstrate compliance with the obligations of the controller.’
56      Article 86 of that regulation provides:
‘Personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation.’
C.      Hungarian law
1.      The Basic Law of Hungary
57      Article XV(5) of the Magyarország Alaptörvénye (Basic Law of Hungary), in the version applicable to the present dispute, provides:
‘Hungary shall protect families, children, women, elderly persons and persons with disabilities with special measures.’
58      Article XVI of that basic law provides:
‘1.      Every child shall have the right to the protection and care required for his or her proper physical, mental and moral development. Hungary shall protect children’s right to self-identity according to their birth sex, and shall ensure education according to the value system based on our country’s constitutional self-identity and Christian culture.
2.      Parents shall have the right to choose freely the education they deem fit for their child.’
2.      The Hungarian Civil Code
59      Paragraph 4:146 of the a polgári törvénykönyvről szóló 2013. évi V. törvény (Law No V of 2013 establishing the Civil Code) (‘the Hungarian Civil Code’) provides:
‘(1)      Minor children shall be under parental responsibility or guardianship.
(2)      Parental responsibility shall include the right and the obligation to choose the name of the minor child, to decide on the care and education with which he or she is to be provided as well as his or her place of residence, to manage his or her property and to provide him or her with legal representation, as well as the right to appoint a guardian and to exclude a person from guardianship.’
60      Paragraph 4:224 of that code provides:
‘Unless this Law provides otherwise, the guardian shall be the caretaker, educator, property administrator and legal representative of the child under guardianship.’
61      Under Paragraph 8:1(1) of the Hungarian Civil Code:
‘For the purposes of this Law:
…
2.      “relative”: close relative, life partner, spouse of consanguineous relative, consanguineous relative of spouse, sibling of spouse, spouse of sibling;
…’
3.      The Law on the Protection of Children
62      Paragraph 1(1) of Law No XXXI of 1997 on the protection of children and the administration of guardianship, as amended by the amending law (‘the Law on the Protection of Children’), states:
‘The purpose of this Law is to establish the basic rules according to which the State, local government bodies, and natural and legal persons entrusted with providing protection for children, as well as other organisations without legal personality, are to ensure, through specific services and measures, the enforcement of the rights and interests of children as enshrined in law and the fulfilment of parental duties, and are to ensure that situations in which children are put in danger are prevented or eliminated, that deficiencies in parental care are remedied, and that young adults who have been removed from the child care system become socially integrated.’
63      Paragraph 4 of that law is worded as follows:
‘(1)      The scope of this Law shall extend to:
(a)      subject to the exception set out in subparagraph 3, children, young adults and their parents who are Hungarian citizens residing in the territory of Hungary, and – unless an international treaty provides otherwise – children, young adults and their parents who have permanent resident status, migrant status, or admitted person status, as well as children, young adults and their parents who have been recognised by the Hungarian authorities as refugees, persons enjoying subsidiary protection or stateless persons;
(b)      any person having the right of free movement and residence under the [a szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és tartózkodásáról szóló 2007. évi I. törvény (Law No I of 2007 on the entry and residence of persons having the right of free movement and residence)] if, at the time of applying for benefits, that person exercises his or her right of free movement and residence for more than three months in the territory of Hungary, in accordance with Law No I of 2007 on the entry and residence of persons having the right of free movement and residence, and has a legal domicile in accordance with the [a polgárok személyi adatainak és lakcímének nyilvántartásáról szóló 1992. évi LXVI. törvény (Law No LXVI of 1992 on the registration of citizens’ personal data and residential addresses)];
…
(3)      In addition to the persons referred to in subparagraph 1, the scope of this Law shall also extend to the protection of a child of non-Hungarian citizenship residing in Hungary, if the failure to provide temporary placement, to place the child under educational supervision, or to appoint a guardian would put the child in danger or give rise to irreparable harm.’
64      Paragraph 5(s) of the Law on the Protection of Children defines the concept of ‘authority’ as follows:
‘(sa)      the body designated by Governmental Decree to perform the duties of the State authority, the local government body, and the association of local government bodies (together, “the State authority”);
(sb)      the established church, its internal ecclesiastical legal entity, as well as the incorporated church and the registered church and their respective internal ecclesiastical legal entities, which, pursuant to Pargraph 9/D(5) and Paragraph 9/F(1) of the [a lelkiismereti és vallásszabadság jogáról, valamint az egyházak, vallásfelekezetek és vallási közösségek jogállásáról szóló 2011. évi CCVI. törvény (Law No CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, religious denominations and religious communities)], has concluded an agreement that also covers the performance of tasks relating to child welfare, child protection or social duties …;
(sc)      the sole trader;
(sd)      the legal entities and individual undertakings established in Hungary and not mentioned in points (sa) and (sb);
(se)      the branch of an undertaking established in a State that is a party to the Agreement on the European Economic Area (“EEA State”) which is registered in the national territory, and – if, based on an international treaty concluded with the European Community and its Member States, the service providers of the State concerned enjoy the same legal status as the service providers of an EEA State in terms of freedom of establishment – the branch of an undertaking established in a State other than an EEA State which is registered in the national territory (the entities referred to in points (sc) to (se) are to be referred to collectively as “the non-State authority”), if, in accordance with the conditions set out in this Law and other legislation, it ensures the conditions necessary for the performance of tasks relating to the provision of child welfare and child protection services.’
65      Under Paragraph 6/A of that law:
‘In order to safeguard the objectives set out in this Law and to ensure the protection of children’s rights, making the following available to persons under the age of 18 shall be prohibited: pornography, as well as content that depicts sexuality for its own purposes, or that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.’
4.      The Law on Commercial Advertising
66      Paragraph 8(1) and (1a) of Law No XLVIII of 2008 laying down the basic requirements and certain restrictions applicable to commercial advertising activities, as amended by the amending law (‘the Law on Commercial Advertising’), states:
‘(1)      Advertising that may impair the physical, mental, emotional or moral development of children and minors shall be prohibited.
(1a)      It shall be prohibited to make available to persons under the age of 18 advertising that depicts sexuality for its own purposes, or that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.’
5.      The Law on Media Services
67      Under Paragraph 9 of Law No CLXXXV of 2010 on media services and mass media communications, as amended by the amending law (‘the Law on Media Services’):
‘(1)      The provider of linear media services shall classify all programmes it intends to broadcast – with the exception of news programmes, political news programmes, sports programmes, trailers for programmes, political advertising, teleshopping, messages promoting awareness or communications of public interest – in one of the categories referred to in subparagraphs 2 to 7 prior to broadcasting.
…
(6)      Programmes which may adversely affect the physical, mental or moral development of minors, due to, inter alia, their having as a defining element the promotion or portrayal of violence, or of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, as well as the direct, naturalistic or gratuitous portrayal of sexuality, must be classified in Category V. Those programmes shall be given the following rating: not recommended for persons under the age of 18.
(7)      Programmes which may seriously impair the physical, mental or moral development of minors, in particular because they contain pornography or extreme or unjustified violence, must be classified in Category VI.
(8)      The Media Council shall publish in a recommendation the main principles of its legal practice in applying the detailed criteria governing classification under subparagraphs 2 to 7, the signals to be used before and during the broadcasting of individual programmes, and the way in which the classification is to be communicated, where this is justified by the public interest in the protection of minors or by the uniform enforcement of the protection of minors.
…’
68      Paragraph 10(1)(d) of that law provides that a Category V programme may be broadcast between 22:00 and 05:00 only.
69      Paragraph 24(1) of the Law on Media Services provides:
‘Commercial communications published in connection with media services ... shall not contain or support discrimination based on gender, racial or ethnic origin, citizenship, nationality, religion or philosophical beliefs, physical or mental disability, age or sexual orientation.’
70      Paragraph 32(4a) of that law states:
‘Programmes which may adversely affect the proper physical, mental and moral development of children, due to, inter alia, their having as a defining element the portrayal of sexuality for its own purposes, or of pornography, as well as the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, shall not be classified as a communication of public interest or message promoting awareness.’
71      Paragraph 179 of the Law on Media Services provides:
‘…
(2)      In the event that problems are identified in connection with the provisions of subparagraph 1, as well as in the event of infringement of the relevant provisions of this Law and the [a sajtószabadságról és a médiatartalmak alapvető szabályairól szóló 2010. évi CIV. törvény (Law No CIV of 2010 on the freedom of the press and the fundamental rules applicable to media content)], the Media Council must request the Member State under whose jurisdiction the media service provider referred to in subparagraph 1 falls to take effective measures. In that context, the Media Council shall request the Member State to intervene in order to put an end to the infringements identified by the Media Council.
…
(4)      The Media Council may enforce the legal consequences referred to in Paragraph 187(3)(b) and (c) and (4) with regard to the media service provider referred to in subparagraph 1 if:
(a)      it establishes that the measures which, pursuant to subparagraph 2, it requested of the Member State with jurisdiction were not taken within two months or were taken incorrectly;
(b)      on the basis of the evidence, it can be established that the media service provider established itself outside of Hungary in order to avoid being required to comply with the stricter rules which would, under this Law and [Law No CIV of 2010 on the freedom of the press and the fundamental rules applicable to media content], be applicable to it;
(c)      prior to the enforcement of the legal consequence referred to in subparagraph 1, the Media Council notified, in writing, the Member State in which the media service provider is established, as well as the European Commission, of the legal consequence to be enforced, as well as the reasons for its findings;
(d)      the Media Council invited the media service provider concerned to make a statement regarding its position, comments and evidence in relation to the infringement of the law and the legal consequences to be enforced;
(e)      according to the decision of the European Commission, the legal consequence to be enforced is compatible with EU law and the findings referred to in point (c) are sufficiently substantiated; and
(f)      the legal consequence to be enforced is proportionate and necessary in relation to the interest to be protected.’
72      Paragraph 187(3) of that law provides:
‘The Media Council and [the Nemzeti Média- és Hírközlési Hatóság Hivatala (Office of the National Media and Infocommunications Authority, Hungary)] are empowered, taking into account subparagraphs 2 and 8, to enforce the following legal consequences:
(a)      exclude the offender from participating in the tendering procedures of [the Médiaszolgáltatás-támogató és Vagyonkezelő Alap (Media Services Support and Asset Management Fund, Hungary)] for a specified period;
(b)      require the offender to publish a notice or a decision on the homepage of the offender’s website, in a news communication or in a designated programme, in the manner and for the period specified in the decision;
(c)      suspend, for a specified period, the exercise of the right to provide media services:
(ca)      the duration of the suspension may be between 15 minutes and 24 hours,
(cb)      in the event of a serious offence, the duration of the suspension may be between 1 hour and 48 hours,
(cc)      in the event of a serious, repeated offence, the duration of the suspension may be between 3 hours and 1 week;
(d)      remove the media service through which the offence was committed from the register, referred to in Paragraph 41(4), or terminate, with immediate effect, the official contract concluded regarding the right to provide media services if the provider concerned has committed a serious, repeated offence. A media service which has been removed from the register cannot be made available to the public after its removal.’
6.      The Law on the Criminal Records System
73      Paragraph 67(1) of Law No XLVII of 2009 on the criminal records system, the registration of judgments handed down by the courts of the Member States of the European Union against Hungarian citizens, and the registration of biometric data in criminal and law enforcement matters, as amended by the amending law (‘the Law on the Criminal Records System’), is worded as follows:
‘The criminal records body shall, from the criminal records information system and in accordance with the provisions of this Law:
(a)      provide the authorised person with direct access to registered data;
(b)      transmit data to the authorised person on the basis of a request to that effect;
(c)      verify data at the request of the authorised person;
(d)      make available electronically, to the authorised person, the registered data of persons who have committed offences abusing the sexual freedom or sexual morality of children;
…’
74      Paragraph 75/B(1) and (3) of that law reads as follows:
‘(1)      In order to ensure the protection of children and to prevent offences against sexual freedom or sexual morality committed by harming or exploiting children, with a view to monitoring persons who come into direct contact with children, under the conditions set out in subparagraphs 2 and 3, as well as in Paragraph 75/C, the criminal records body shall, through an electronic interface which can be used after identification by means of the electronic identification service which the government is required to provide in accordance with the Law on the general rules of electronic administration and confidential services (“the interface”), make available [the following data relating to the data subject]:
…
(3)      The making available of data relating to the data subject via the interface may be initiated if:
(a)      the initiator is an adult who
(aa)      is a relative of or
(ab)      is responsible for the education, supervision or care of a person who has not reached the age of 18 (together, “the person entitled to have access to the data subject’s data”);
(b)      in the view of the person entitled to have access to the data subject’s data, access to the data is likely to be necessary for the purposes specified in subparagraph 1, and obtaining access to the data in another way would involve disproportionate difficulties; and
(c)      the person entitled to have access to the data subject’s data
(ca)      declares that the conditions relating to the need to have access to the data referred to in point (b) are satisfied, and
(cb)      indicates the surname and first name of the person concerned by the request for access to data.’
7.      The Law on Public Education
75      Paragraph 9(12) of Law No CXC of 2011 on national public education, as amended by the amending law (‘the Law on Public Education’), is worded as follows:
‘During activities organised for students and concerning sexual culture, sexual life, sexual orientation, and sexual development, particular attention must be paid to the provisions of Article XVI(1) of [the Basic Law of Hungary]. Those activities must not have the aim of promoting deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.’
II.    Pre-litigation procedure and procedure before the Court
76      On 15 June 2021, Hungary adopted the amending law, which entered into force on 8 July 2021.
77      On 15 July 2021, the Commission sent a letter of formal notice to that Member State, in which it indicated that, by adopting that law, that Member State had failed to fulfil its obligations under Article 2, Article 3(1) and (2), Article 4(1), Article 6a, Article 9(1)(c)(ii) and Article 28b of Directive 2010/13, Article 3 of Directive 2000/31, Article 5(1) of Directive 2015/1535, Articles 16 and 19 of Directive 2006/123, Articles 6 and 10 of the GDPR, Articles 34, 36 and 56 TFEU, Articles 1, 7, 8, 11 and 21 of the Charter, and Article 2 TEU.
78      By a letter of 15 September 2021, Hungary disputed the alleged failures to fulfil obligations.
79      On 2 December 2021, the Commission issued a reasoned opinion in which it maintained that the amending law was in breach of the provisions of EU law referred to in paragraph 77 of the present judgment. Consequently, that institution invited Hungary to take the measures necessary to comply with that reasoned opinion within two months of receipt thereof.
80      By a letter of 2 February 2022, Hungary responded to the reasoned opinion, reiterating its view that the amending law was in line with EU law.
81      On 19 December 2022, the Commission brought the present action.
82      By decisions of the President of the Court of 20 March 2023, 4 May 2023 and 29 June 2023, the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, 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 and the Kingdom of Sweden, as well as the European Parliament, were granted leave to intervene in support of the form of order sought by the Commission.
III. The action
83      In support of its action, the Commission relies on six pleas in law, alleging (i) infringements of Article 2, Article 3(1), Article 6a(1) and Article 9(1)(c)(ii) of Directive 2010/13, (ii) infringement of Article 3(2) of Directive 2000/31, (iii) infringements of Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU, (iv) infringements of Article 10 of the GDPR and Article 8(2) of the Charter, (v) infringements of Articles 1, 7, 11 and 21 of the Charter, and (vi) infringement of Article 2 TEU.
A.      First, second, third and fifth pleas in law, alleging infringements of Directive 2000/31, Directive 2006/123, Directive 2010/13 and Article 56 TFEU, as well as Articles 1, 7, 11 and 21 of the Charter
84      As a preliminary point, it should be borne in mind that, although, in the context of the fifth plea in law, the Commission has, in particular, relied on infringement of Article 21 of the Charter, enshrining the general principle of non-discrimination, the arguments which it puts forward in support of its first three pleas in law also refer to that infringement, which, it claims, contributes to the infringement of Directive 2000/31, Directive 2006/123, Directive 2010/13 and Article 56 TFEU relied on in the context of those three pleas. Consequently, it is necessary to examine those pleas in the light of all the arguments put forward by the Commission to establish the existence of direct discrimination prohibited by Article 21 of the Charter, as well as Hungary’s arguments disputing the existence of such discrimination in the present case.
1.      First plea in law, alleging infringements of Directive 2010/13
85      The first plea in law consists of three parts, alleging infringement of (i) Article 6a(1) of Directive 2010/13, (ii) Article 2 and Article 3(1) of that directive, and (iii) Article 9(1)(c)(ii) thereof.
(a)    Infringement of Article 6a(1) of Directive 2010/13
(1)    Arguments of the parties
86      By the first part of the first plea in law, the Commission argues that Hungary has failed to fulfil its obligations under Article 6a(1) of Directive 2010/13, pursuant to which Member States are to take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them.
87      That institution notes, in that regard, that, according to Paragraph 9(1) of the Law on Media Services, providers of linear media services are required to classify the programmes they broadcast in accordance with subparagraphs 2 to 7 of that paragraph. According to Paragraph 9(6) of that law, classification in Category V, which covers programmes ‘not recommended for persons under the age of 18’, applies to programmes which may adversely affect the physical, mental or moral development of minors, due to, inter alia, their having as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality. In addition, Paragraph 10(1)(d) of that law provides that a Category V programme may be broadcast between 22:00 and 05:00 only.
88      The Commission argues, in that context, that the limitation on broadcasting laid down in Paragraph 9(1) and (6) of the Law on Media Services does not apply to certain specific types of programme, in particular communications of public interest or messages promoting awareness. According to that institution, a communication of public interest is a short informative clip intended to draw the public’s attention to an important issue. Similarly, a message promoting awareness could be interpreted as designating a communication or message created in the public interest, which is to be broadcast without commercial interest and not for promotional purposes, whether or not for consideration, and which is intended to influence the person viewing or listening to a media service in order to achieve a general interest objective.
89      However, Paragraph 32(4a) of that law expressly excludes programmes which ‘may adversely affect the proper physical, mental and moral development of children, due to, inter alia, their having as a defining element … the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality’ from the concepts of ‘a communication in the public interest’ and ‘a message promoting awareness’ for the purposes of Paragraph 9(1) thereof. Access to public service programmes would thus be significantly restricted for programmes which contain scenes promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
90      The Commission therefore submits that those measures constitute a restriction on the provision of audiovisual services contrary to Article 6a(1) of Directive 2010/13.
91      According to that institution, that restriction cannot be justified by the objective of preventing a threat to the physical, mental or moral development of minors, as the mere representation of homosexuality or non-cisgendered life does not impair such development. It argues that those measures are not suitable to counter such a threat; nor are they proportionate, given that Hungary has not demonstrated that there is a causal link between the restrictions in question and the general interest relied on.
92      In that regard, the Member States are not entirely free, where there is no evidence of a potential threat to minors, to assert that certain content is potentially harmful. It is not possible to reach a different conclusion on the basis of (i) the fact that Article 6a(1) of Directive 2010/13 brings about minimum harmonisation, (ii) the precautionary principle, or (iii) the principle of subsidiarity.
93      The Commission argues, in that context, that a restriction on the provision of audiovisual services can in no circumstances be based on Article 6a(1) of Directive 2010/13 where it targets content specifically by reference to sex or to sexual orientation, given that such a restriction is, by its very nature, contrary to the principle of non-discrimination, which is a general principle of EU law enshrined in Article 21 of the Charter. It recalls, in that regard, the settled case-law from which it follows that the Member States may not rely on an interpretation of secondary legislation which would be contrary to, inter alia, the fundamental rights protected by the legal order of the Union.
94      In that regard, it should be pointed out that the case-law derived from the judgment of 27 April 2006, Richards (C‑423/04, EU:C:2006:256, paragraph 24 and the case-law cited), according to which Directive 2010/13 also applies to discrimination arising from the gender reassignment of the person concerned, also covers discrimination based on deviation from the self-identity corresponding to the sex assigned at birth.
95      The restriction on the broadcasting of programmes having as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality would exclude the actual appearance, in those programmes, of persons who are not cisgender or who are not heterosexual, as well as their way of life, even though those persons are an integral part of a society in which pluralism and diversity prevail, in accordance with the values referred to in Article 2 TEU. Paragraph 9(6) of the Law on Media Services thus gives rise to direct discrimination based on sex and sexual orientation, which is prohibited by Article 21(1) of the Charter.
96      Contrary to Hungary’s assertions, that discrimination cannot be justified under Article 24(2) and Article 14(3) of the Charter.
97      In the first place, regarding Article 24(2) of the Charter, the Commission submits that it is possible to protect minors from content which is not age appropriate without engaging in direct discrimination based on sex and sexual orientation. Moreover, it is perfectly possible to present gender diversity in an age-appropriate manner. It follows that Paragraph 9(6) of the Law on Media Services does not constitute a necessary or appropriate means of ensuring the protection of minors.
98      On the contrary, the difference in treatment based on sex and sexual orientation brought about by that provision is such as to foster the shaming and alienation of persons, in particular young people and adolescents whose gender identity or sexual orientation does not correspond to ‘traditional social norms’, with those restrictions causing more harm than they prevent, in particular with regard to minors.
99      As regards the relevance (contested by Hungary), in that regard, of the case-law derived from the judgment of the European Court of Human Rights of 20 June 2017, Bayev and Others v. Russia (CE:ECHR:2017:0620JUD006766709), the Commission submits that, in that judgment, that court rejected the assertion that the mere mention of homosexuality, or open public debate about sexual minorities would adversely affect children or vulnerable adults, while highlighting the reasons why information and debate would truly benefit social cohesion. Protection against the risk of minors being exploited and corrupted on account of their vulnerability cannot be limited to relations between persons of the same sex. As a matter of principle, that positive obligation should also be relevant as regards relations between persons of different sexes.
100    That institution adds that the European Court of Human Rights reaffirmed that case-law in its judgment of 23 January 2023, Macatė v. Lithuania (CE:ECHR:2023:0123JUD006143519, § 210), in which it emphasised that there was no scientific evidence or sociological data suggesting that open public debate about sexual minorities’ social status would adversely affect children and that, to the extent that minors who witness demonstrations in favour of the rights of non-cisgender or non-heterosexual persons are exposed to the ideas of diversity, equality and tolerance, the adoption of these views can only be conducive to social cohesion.
101    In the present case, Paragraph 9(6) of the Law on Media Services implies that the mere portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality is as harmful as the gratuitous portrayal of violence, pornography or sexuality. In addition, Hungary has not shown that it is in children’s best interests to ensure that the portrayal of non-cisgender content or ways of life is not accessible to them until they have reached the age of 18.
102    In the second place, regarding Article 14(3) of the Charter, the Commission disagrees that Paragraph 9(6) of the Law on Media Services preserves the freedom of parents to raise their children in conformity with their own personal religious, philosophical and pedagogical convictions, as Hungary has not provided any convincing explanation as regards the way in which that restriction, or rather lack of restriction, regarding content would affect the right of parents to raise their children freely.
103    First, the rights of parents under Article 14(3) of the Charter must be interpreted in the light of the provisions of Article 24 thereof, as well as in the light of the protection of the rights of the child. Second, Article 14 of the Charter is based on the right to education enshrined in Article 2 of the First Additional Protocol to the ECHR.
104    The right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions, enshrined in Article 14(3) of the Charter, cannot be interpreted as justifying the adoption by the Member States of legislation affecting, in a discriminatory manner, the freedom of expression and the human dignity of others, including minors.
105    In addition, it follows from the judgment of the European Court of Human Rights of 7 December 1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark (CE:ECHR:1976:1207JUD000509571, § 50), that the second sentence of Article 2 of that additional protocol is intended to safeguard the possibility of pluralism in education, which possibility is essential for the preservation of a ‘democratic society’ as conceived by the ECHR.
106    Moreover, the Commission emphasises that neither Paragraph 9(1) and (6) of the Law on Media Services nor Paragraph 32(4a) thereof can be regarded as being ‘more detailed or stricter rules’ for the purposes of Article 4 of Directive 2010/13, given that such more detailed or stricter rules are permitted only to the extent that they are in compliance with Union law, which is not the situation in the present case.
107    Hungary notes that, under Article 7(2) of the European Convention on Transfrontier Television, media content providers must ensure that programmes which are likely to impair the physical, mental or moral development of children and adolescents are not scheduled when, because of the time of transmission and reception, they are likely to watch them. In addition, providers of media services bear a similar responsibility by virtue of the provisions of Directive 2010/13. Thus, Article 6a and recital 60 of that directive specifically emphasise the need for and the importance of minors being protected, and provide for measures to be taken for that purpose.
108    In that regard, that Member State challenges the premiss on which the Commission’s reasoning is based, according to which the adoption of measures under Article 6a(1) of Directive 2010/13 requires that it be established from the outset that the media content in question is actually detrimental to the development of minors.
109    Given that it is impossible to assess the actual impact of such media content, it is for the Member States to identify, in view of the fact that the harmonisation brought about by Article 6a(1) of that directive is minimal and in accordance with the precautionary principle, the media content, programme elements or forms of presentation which may impair the physical, mental or moral development of minors. Regarding the precautionary principle, Hungary notes that the concept of ‘human health’ includes mental health and healthy psychological development. That principle could therefore be relied on in order to maintain that there is no reliable scientific evidence demonstrating that making potentially harmful content available to minors is unlikely to disrupt their healthy development.
110    The determination and interpretation, on the basis of Member States’ values and cultural and moral perceptions, of media content deemed to be harmful, as well as the level of protection to be granted, is not, however, harmonised by Directive 2010/13, and therefore falls within the exclusive competence of the Member States.
111    Furthermore, each Member State is free, by virtue of the principle of subsidiarity, to determine and to promote the protection of children and the right of parents to raise their children on the basis of their own personal convictions.
112    In the first place, regarding the content of the rules governing, as regards Category V, the classification of programmes on the basis of age, Hungary argues that Paragraph 9(6) of the Law on Media Services cannot be interpreted as meaning that some content would be unconditionally classified in that category or that that content would be considered as harmful or detrimental to the physical, mental or moral development of minors.
113    The classification of a programme in that category depends on the cumulative conditions set out in that provision. First, that programme must be capable of adversely affecting the physical, mental or moral development of minors. Second, that adverse effect cannot materialise unless the potentially harmful elements are defining elements of that programme.
114    In that context, unless homosexuality or non-cisgendered life constitutes a programme’s central theme, their mere portrayal does not constitute such a defining element.
115    In the second place, regarding whether the measures at issue are justified and proportionate, Hungary recalls that the fundamental general interest objective of those measures is to protect minors from harmful media content the potential harmful effects of which they cannot assess for themselves.
116    Given that it is scientifically accepted that the development of gender identity and sexual orientation is influenced by education, culture, media and society, it is necessary to adapt teaching, information and education to the age and to the cognitive and emotional development of the age group concerned.
117    In addition, the restriction derived from Paragraph 9(6) of the Law on Media Services does not entail the exclusion of certain persons or certain ways of life from the public sphere and therefore does not entail direct discrimination based on sexual orientation or gender identity. Hungary emphasises that that provision is not intended to exclude from public communications ‘persons and lives’ portraying homosexuality, gender reassignment or an identity not corresponding to the sex assigned at birth. Its rationale is the protection of minors, which is why no restriction or prohibition is imposed on adults.
118    For that reason, that Member State disputes the relevance of the judgment of the European Court of Human Rights of 20 June 2017, Bayev and Others v. Russia (CE:ECHR:2017:0620JUD006766709), given that there can be no question, in the present case, unlike the situation at issue in the case giving rise to that judgment, of the adopted measures lacking specificity. It emphasises in that context that the measures at issue, in particular Paragraph 9(6) of the Law on Media Services, expressly specify their scope, referring to relations which, in everyday life, may have an effect on the healthy development of minors, having regard, in particular, to the educational and media environment. As regards the relevance of the judgment of the European Court of Human Rights of 23 January 2023, Macatė v. Lithuania (CE:ECHR:2023:0123JUD006143519), Hungary contends that the measures at issue do not place a general prohibition on the acquisition of goods or services which portray or promote certain content and do not affect the right of parents or guardians to inform minors of those issues or to discuss them.
119    It is therefore necessary to take into account the judgments of the European Court of Human Rights which acknowledge the best interests of the minor and the margin of assessment available to the Member States in regulating sensitive issues. The acknowledgement of that margin of assessment, as specified by the judgment of the European Court of Human Rights of 7 December 1976, Handyside v. the United Kingdom (CE:ECHR:1976:1207JUD000549372, § 48), enables the Member States to determine whether there is a pressing social need to restrict a particular right and, if so, the measures which may be taken in order to respond to that need.
120    Hungary therefore maintains that the restriction on the broadcasting of certain programmes which is introduced by Paragraph 9(6) of the Law on Media Services is justified by the best interests of the child, protected by Article 24(2) of the Charter, as such child protection measures must be regarded as justified in the light of the precautionary principle where there is content which may be presumed to have a negative effect on the healthy development of minors.
121    That restriction is also justified in the light of Article 14(3) of the Charter. According to Hungary, in that regard it follows from the case-law derived from the judgment of 15 July 2021, WABE and MH Müller Handel (C‑804/18 and C‑341/19, EU:C:2021:594), that the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions constitutes an objective ground capable of justifying restrictions on the rights enshrined in the Charter.
122    Hungary adds that the measures at issue in the context of the first part of the first plea in law do not impose a general restriction on the broadcasting of media content in respect of all types of media and all public community platforms, but only in respect of linear media services, with the result that they cannot have the effect of excluding a theme or a person from the public sphere.
123    As regards the prohibition, under Paragraph 32(4a) of the Law on Media Services, on classifying the content concerned as communications of public interest or messages promoting awareness, Hungary argues that the latter are a form of promotion, via advertising, intended to achieve general interest objectives or social policy objectives pursued by various public or non-governmental bodies or organisations. Accordingly, a programme having as a defining element the portrayal or promotion of content which may be harmful to minors cannot be regarded as being a communication of public interest or message promoting awareness. However, that provision does not exclude programmes which merely present or promote the content in question from classification as a communication of public interest or message promoting awareness, where that content is not a defining element of the programme in question. Moreover, Paragraph 32(4a) of the Law on Media Services does not lay down a general prohibition on the broadcasting of such content.
(2)    Findings of the Court
124    As a preliminary point, it should be noted that, as is apparent from its title and recital 11 thereof, Directive 2010/13 is intended to coordinate certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services with a view to the completion of a true internal market for those services. To that end, that directive lays down a basic tier of coordinated rules applicable to all audiovisual media services, some of which, as is apparent from recital 18 of that directive, concern the content of those services (judgment of 26 June 2025, Makeleio and Zougla, C‑555/23 and C‑556/23, EU:C:2025:484, paragraph 60).
125    In addition, as is stated in recital 20 of Directive 2018/1808, which amended Directive 2010/13 by incorporating Article 6a(1) into that directive, the infringement of which is alleged in the first part of the first plea in law, that minimum harmonisation approach allows Member States to develop a higher degree of protection against content which may impair the physical, mental or moral development of minors.
126    According to the first subparagraph of Article 6a(1) of Directive 2010/13, Member States are to take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They are to be proportionate to the potential harm of the programme.
127    In that regard, it should be noted, first, that, as has been emphasised in paragraph 125 of the present judgment, that provision is aimed not at full harmonisation, but at minimal harmonisation. Second, in the absence of harmonisation at EU level of the rules applicable to the classification and labelling of audiovisual programmes, it is for the Member States to determine the level at which they intend to ensure the protection of minors against audiovisual content likely to harm their well-being and their development. Thus, the measures adopted by a Member State to protect minors against audiovisual content likely to impair their physical, mental or moral development do not necessarily correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating thereto, as that conception may vary from one Member State to another according to, inter alia, moral or cultural attitudes (see, to that effect, judgments of 19 November 2020, ZW, C‑454/19, EU:C:2020:947, paragraph 42 and the case-law cited, and of 23 March 2023, Booky.fi, C‑662/21, EU:C:2023:239, paragraphs 56 and 57).
128    Accordingly, as Hungary contends, the Member States have, when implementing Article 6a(1) of Directive 2010/13, a margin of assessment in defining the audiovisual media services provided by media service providers under their jurisdiction which are likely to impair the physical, mental or moral development of minors (see, to that effect, judgment of 3 September 2020, Vivendi, C‑719/18, EU:C:2020:627, paragraph 47), on condition, in accordance with that provision, that the appropriate measures taken by the Member States on that basis be proportionate to the potential harm of the programme concerned. This requires that those measures not go beyond what is necessary in order to protect that development and that they are not disproportionate in view of that objective (see, by analogy, judgment of 5 December 2024, Network One Distribution, C‑506/23, EU:C:2024:1003, paragraph 35 and the case-law cited).
129    In addition, according to settled case-law, the requirements flowing from the protection of fundamental rights are binding on Member States when they implement EU rules, meaning that they are bound to apply the rules in accordance with those requirements. In that context, Member States must, inter alia, make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with those fundamental rights (see, to that effect, judgments of 26 June 2007, Ordre des barreaux francophones et germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 28; of 29 April 2015, Léger, C‑528/13, EU:C:2015:288, paragraph 41; and of 3 June 2025, Kinsa, C‑460/23, EU:C:2025:392, paragraph 69 and the case-law cited).
130    The Court has repeatedly held that provisions of EU law must be interpreted in the light of fundamental rights, which form an integral part of the general principles of EU law whose observance the Court ensures and which are now set out in the Charter (judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 68; of 25 May 2016, Meroni, C‑559/14, EU:C:2016:349, paragraph 45; and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 70).
131    It follows that, when adopting measures under Article 6a(1) of Directive 2010/13, the Member States cannot act in breach of, in particular, the prohibition, enshrined in Article 21(1) of the Charter, of any discrimination based on sex or sexual orientation, that prohibition being mandatory as a general principle of EU law (judgment of 25 November 2025, Wojewoda Mazowiecki, C‑713/23, EU:C:2025:917, paragraph 70 and the case-law cited). That general principle precludes, in particular, comparable situations from being treated differently where that difference in treatment is not capable of being objectively justified (see, to that effect, judgment of 1 March 2011, Association belge des Consommateurs Test-Achats and Others, C‑236/09, EU:C:2011:100, paragraph 28 and the case-law cited).
132    In that regard, it should be specified that the existence of prohibited discrimination may be the result of, inter alia, the offensive and/or stigmatising nature of provisions of national law with regard to the persons concerned (see, as regards discrimination based on ethnic origin, judgment of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C‑417/23, EU:C:2025:1017, paragraph 126 and the case-law cited).
133    As regards, in particular, discrimination based on sex, according to settled case-law this cannot be confined simply to discrimination based on the fact that a person is of one sex or another. In view of the purpose of Article 21(1) of the Charter and the nature of the rights which it seeks to safeguard, the scope of that article is such as to apply not only to discrimination arising from a change of gender of the person concerned, that is to say, from gender reassignment, but also to discrimination based on deviation from the self-identity corresponding to the sex assigned at birth (see, to that effect and by analogy, judgments of 27 April 2006, Richards, C‑423/04, EU:C:2006:256, paragraph 24; of 26 June 2018, MB (Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 35; and of 9 January 2025, Mousse, C‑394/23, EU:C:2025:2, paragraph 62 and the case-law cited).
134    In the present case, Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, provides that programmes falling within the scope of that law and having as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality are to be classified in Category V and, as such, may be broadcast between 22:00 and 05:00 only. In addition, Paragraph 32(4a) of that law specifies that such programmes may not be classified as communications of public interest or messages promoting awareness, capable of being exempted, on that basis, from the limitation deriving from Paragraph 9(6) thereof. Hungary maintains that such measures pursue the objective of protecting the physical, mental or moral development of minors, as well as the right of parents to raise their children on the basis of their own personal convictions.
135    However, it must be pointed out that those provisions of the Law on Media Services make a distinction directly based on sex and sexual orientation, inasmuch as only those programmes are made subject to such broadcasting hours, to the exclusion of programmes having as a defining element the promotion or portrayal of the gender identity and sexual orientation of cisgender and heterosexual persons. Such a difference in treatment thus constitutes discrimination which is, in principle, prohibited by Article 21(1) of the Charter.
136    Moreover, inasmuch as they are based exclusively on considerations relating to the identities and sexual orientations represented in those programmes, those provisions are based on the premiss that any portrayal or promotion of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, whatever its specific content, is such as to be detrimental to the best interests of the child, which reveals a preference for certain identities and sexual orientations to the detriment of others, and thus contributes to the stigmatisation of the latter (see, by analogy, ECtHR, 23 January 2023, Macatė v. Lithuania, CE:ECHR:2023:0123JUD006143519, §§ 214 to 216).
137    In that context, Hungary’s argument that Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, as well as Paragraph 32(4a) thereof, does not lay down a general prohibition on the broadcasting of the programmes concerned cannot succeed.
138    Indeed, it should be specified that Article 21(1) of the Charter prohibits ‘any’ discrimination based on, inter alia, sex or sexual orientation.
139    In addition, contrary to Hungary’s assertions, the discrimination resulting from the provisions at issue cannot be justified either by the promotion of the best interests of the child, under Article 24(2) of the Charter, or by the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions, enshrined in Article 14(3) thereof.
140    In that regard, it should be borne in mind that, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made in respect of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
141    In the present case, in view of the considerations set out in paragraph 136 of the present judgment, it must be found that, by relying on the premiss that any portrayal or promotion of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, whatever its specific content, is such as to be detrimental to the best interests of the child, and by thereby revealing a preference for certain identities and sexual orientations to the detriment of others, which are stigmatised as a result, the provisions of national law concerned are manifestly contrary to the requirements flowing, in a society in which pluralism prevails, from the prohibition of discrimination on the basis of sex or sexual orientation guaranteed by Article 21(1) of the Charter and, accordingly, undermines the essence of that provision.
142    In that regard, it should be borne in mind that, under the first sentence of Article 52(1) of the Charter, undermining the essence of a right guaranteed by the Charter cannot be justified under any circumstances (see, to that effect, judgments of 26 September 2024, Ordre des avocats du Barreau de Luxembourg, C‑432/23, EU:C:2024:791, paragraph 74, and of 13 March 2025, Deldits, C‑247/23, EU:C:2025:172, paragraphs 45 and 50).
143    Moreover, as regards, in the first place, Hungary’s line of argument derived from Article 24(2) of the Charter, it should be borne in mind that that provision affirms the fundamental nature of the rights of the child (see, to that effect, judgment of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraph 45).
144    As Hungary contends, it is true that the Member States must, when implementing Article 6a(1) of Directive 2010/13, take account of Article 24 of the Charter, which provides, in paragraph 1 thereof, that children have the right, in particular, to such protection as is necessary for their well-being, and, in paragraph 2 thereof, that, in all actions relating to children, taken by, inter alia, public authorities, the child’s best interests must be a primary consideration, those requirements being reflected in the objective of that directive consisting, as can be seen from recitals 60 and 104 thereof, of ensuring a high level of protection of the physical, mental and moral development of minors.
145    In the course of such implementation, it is thus for the Member States to assess whether the programmes of media service providers under their jurisdiction are either wholly or partly inappropriate for minors, in view of the particular degree of sensitivity resulting from their age, as well as the fact that their physical, mental or moral development is not yet complete.
146    The fact remains that minors may be adequately protected against programmes which are not age-appropriate without there being direct discrimination in that regard based on sex and sexual orientation such as that resulting from, in the present case, Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, as well as Paragraph 32(4a) thereof.
147    The mere fact that content promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality is not capable, as such, of establishing the potentially harmful nature of such content.
148    Contrary to Hungary’s assertions, that conclusion cannot be called into question by the margin of assessment which Member States have to protect minors against media services which are not appropriate for them, recalled in paragraph 128 of the present judgment, as that margin of assessment must, in accordance with the case-law referred to in paragraph 129 of the present judgment, be exercised in line with the fundamental rights guaranteed by the Charter.
149    As regards, in the second place, Hungary’s arguments based on Article 14(3) of the Charter, it follows from the Explanations relating to the Charter that Article 14 thereof is based on the common constitutional traditions of Member States and on Article 2 of the First Additional Protocol to the ECHR, according to which, first, ‘no person shall be denied the right to education’, and, second, ‘in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ It also follows from those explanations that the right of parents enshrined in Article 14(3) of the Charter must be interpreted in conjunction with the provisions of Article 24 thereof.
150    Furthermore, it follows from the case-law of the European Court of Human Rights relating to Article 2 of the First Additional Protocol to the ECHR that the right of parents set out in the second sentence of that article is grafted onto the fundamental right to education, but that that second sentence is intended, inter alia, to safeguard the possibility of pluralism in education, which possibility is essential for the preservation of a ‘democratic society’ as conceived by the ECHR (ECtHR, 7 December 1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark, CE:ECHR:1976:1207JUD000509571, § 50, and ECtHR, 25 June 2024, Ukraine v. Russia (re Crimea), CE:ECHR:2024:0625JUD002095814, § 138).
151    As regards that ‘pluralism in education’ as referred to in the case-law of the European Court of Human Rights, it should be emphasised that it also follows from that case-law that it ‘would be unrealistic to expect that parents’ religious or philosophical views would have to be given automatic priority in every situation, particularly outside school’. The European Court of Human Rights has recalled, in that context, that ‘the [ECHR] does not guarantee the right not to be confronted with opinions that are opposed to one’s own convictions’. Accordingly, ‘in sensitive matters such as public discussion of sex education, where parental views, educational policies and the right of third parties to freedom of expression must be balanced, the authorities have no choice but to resort to the criteria of objectivity, pluralism, scientific accuracy and, ultimately, the usefulness of a particular type of information to the young audience’ (ECtHR, 20 June 2017, Bayev and Others v. Russia, CE:ECHR:2017:0620JUD006766709, §§ 81 and 82).
152    As was noted, in essence, by the Advocate General in point 127 of her Opinion, the right of parents to ensure the education and teaching of their children in conformity with their convictions, enshrined in Article 14(3) of the Charter, is thus a corollary of the right to education, as referred to in that article, enabling parents to ensure the education and instruction of their children in conformity with their religious, philosophical and pedagogical convictions.
153    That being said, contrary to Hungary’s assertions, that right of parents to ensure the education and teaching of their children in conformity with their convictions cannot be interpreted as being such as to justify, in general, a Member State being able to take measures which constitute direct discrimination based on sex or sexual orientation by restricting the broadcasting, in the public sphere, of content solely characterised by the fact that it promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality. Such a broadcasting restriction would, on the contrary, be such as to deprive parents of their freedom of choice concerning the education and teaching of their children.
154    Furthermore, the mere fact that programmes broadcast by providers of linear media services have as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality within the meaning of Paragraph 9(6) of the Law on Media Services in no way prevents parents from exercising their responsibility as educators towards their children or from guiding them in a direction consistent with their own religious or philosophical views.
155    Having regard to all of those considerations, Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, as well as Paragraph 32(4a) thereof, cannot be regarded as being measures which are appropriate, for the purposes of Article 6a(1) of Directive 2010/13, read in the light of Article 21 of the Charter, to ensure that audiovisual media services provided by media service providers under Hungary’s jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them.
156    That conclusion cannot be called into question by the precautionary principle, relied on by Hungary, as that principle is not, in any event, such as to justify the adoption, in breach of the prohibition laid down in Article 21(1) of the Charter, of measures constituting direct discrimination based on sex and sexual orientation.
157    Nor can it be called into question by applying the principle of subsidiarity, relied on by Hungary, in so far as, as the Commission remarks, that Member State has not contested, by way of an action for annulment provided for in Article 263 TFEU, the legality of Article 6a(1) of Directive 2010/13 pursuant to that principle in order to avoid the application of that provision.
158    It follows that Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, as well as Paragraph 32(4a) thereof, are not such as to constitute measures meeting the requirements laid down in Article 6a(1) of Directive 2010/13, read in the light of Article 21(1) of the Charter.
159    Moreover, it must be held, as is argued by the Commission, that Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, as well as Paragraph 32(4a) thereof, also cannot be regarded as constituting more detailed or stricter rules for the purposes of Article 4(1) of Directive 2010/13.
160    Under Article 4(1) of Directive 2010/13, read in the light of recitals 41 and 83 thereof, in order to ensure that the interests of consumers as television viewers are fully and properly protected, Member States have the option, with regard to media service providers under their jurisdiction, of laying down more detailed or stricter rules and, in certain cases, different conditions, in the fields covered by that directive, provided that such rules are in compliance with EU law and, in particular, with its general principles (see, to that effect, judgment of 26 June 2025, Makeleio and Zougla, C‑555/23 and C‑556/23, EU:C:2025:484, paragraph 77 and the case-law cited).
161    It follows that, although Article 4(1) of Directive 2010/13 permits the Member States to lay down more detailed or stricter rules in the fields coordinated by that directive, such rules must, pursuant to that provision, be in compliance with Union law and, in particular, with the fundamental rights guaranteed by the Charter.
162    Given that it follows from the foregoing considerations that Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, as well as Paragraph 32(4a) thereof, do not respect the essence of Article 21(1) of the Charter, those provisions of Hungarian legislation cannot, in any event, be regarded as constituting more detailed or stricter rules for the purposes of Article 4(1) of that directive.
163    In those circumstances it must be concluded that the first part of the first plea in law is well founded.
(b)    Infringement of Article 2 and Article 3(1) of Directive 2010/13
(1)    Arguments of the parties
164    By the second part of the first plea in law, the Commission submits that Hungary has acted in breach of the country-of-origin principle set out in Article 2 and Article 3(1) of Directive 2010/13.
165    It notes that Paragraph 179(2) of the Law on Media Services, which obliges the Media Council, in the event that a problem arises in relation to the provisions of that law, to request the Member State under whose jurisdiction the media service provider concerned falls to take effective measures, and to request the competent Member State to intervene in order to put an end to the infringements identified by the Media Council, results in a restriction on the freedom of reception referred to in Article 3(1) of that directive.
166    In the first place, the Commission argues that Paragraph 179(2) of that law essentially amends the country-of-origin principle, inasmuch as it establishes a mechanism whereby the receiving Member State obliges the originating Member State to ensure the rules of the receiving Member State are complied with under conditions other than those laid down by that directive.
167    It is true that Article 3(2) of Directive 2010/13 provides a legal framework permitting the Member States to derogate, in exceptional circumstances, from the freedom to receive audiovisual services from other Member States. However, a Member State may not create a specific parallel provision in its national law with the aim of extending its own rules to service providers falling under the jurisdiction of another Member State and applying a threshold for intervention which is lower than that provided for by that provision.
168    Nor can the general obligation imposed on the Media Council under Paragraph 179(2) of the Law on Media Services be validly regarded as being included in the concept of ‘more detailed or stricter rules’ for the purposes of Article 4(1) of Directive 2010/13, as that provision cannot be interpreted as permitting the Member States to derogate from the obligation to comply with the provisions harmonised by that directive. Moreover, Article 4(1) of Directive 2010/13 calls for analysis on a case-by-case basis, whereas Paragraph 179(2) of the Law on Media Services lays down a general obligation for the Media Council.
169    The Commission adds that, in so far as the obligation to act imposed on the Media Council under Paragraph 179(2) of the Law on Media Services covers, in particular, a situation where problems have been identified as regards the classification of programmes in a manner consistent with Paragraph 9(6) of that law, that obligation is based on discriminatory criteria, for the same reason as that set out in paragraph 93 of the present judgment. That institution specifies, in that regard, that the Hungarian authorities have already applied Paragraph 179(2) of the Law on Media Services in several cases.
170    In the second place, the Commission remarks that the application of the penalties provided for in Paragraph 187(3) of the Law on Media Services, in the event that the media service provider does not comply with the Media Council’s request within a period of two months, in accordance with Paragraph 179(4) of that law, is liable to restrict the freedom of reception and retransmission provided for by Directive 2010/13, in circumstances not falling within the scope of Article 3(2) of that directive.
171    In the third place, regarding Hungary’s argument based on the alleged margin of assessment of the Member States resulting from the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607), the Commission notes that that judgment concerns the interpretation of Directive 89/552, whereas the national measures at issue in the present case are included in the field coordinated by Directive 2010/13, which is why the country-of-origin principle is applicable.
172    The Court specified, in paragraph 53 of that judgment, that such measures must respect the requirement not to hinder the retransmission, on the territory of the receiving Member State, of television broadcasts made by a broadcaster from another Member State. However, that requirement is not met in the present case, given that penalties may be adopted in respect of media service providers, including providers of cross-border media services.
173    Hungary contends that there has been no breach of the country-of-origin principle guaranteed by Directive 2010/13.
174    In the first place, the legal basis for the procedure provided for in Paragraph 179 of the Law on Media Services is not Article 3 of that directive, but Article 4 thereof. That provision of the Law on Media Services contains provisions making it possible to combat attempts, by media service providers who are not established in Hungary but the entirety or the majority of whose services are directed towards the Hungarian territory, to circumvent the rules laid down by that law.
175    In the second place, the amending law did not insert a new Paragraph 179(2) into the Law on Media Services, but merely amended that provision, specifying that the Media Council, where a service provider not under Hungary’s jurisdiction has committed an infringement, has an obligation to request the competent Member State to take effective measures.
176    That provision thus constitutes the implementation of a sincere cooperation mechanism in order to find a mutually satisfactory solution, in accordance with Article 4(2) of Directive 2010/13.
177    In the third place, it is apparent from the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 37), that the Member States have a margin of assessment, on the basis of considerations of public order, public morality or public security, concerning the rules generally applicable in their territory in respect of television broadcasts from another Member State.
(2)    Findings of the Court
178    As a preliminary point, it should be borne in mind, first, that Article 2(1) of Directive 2010/13 requires each Member State to ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.
179    Second, Article 3(1) of that directive obliges Member States to ensure freedom of reception and not to restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by the directive.
180    Article 3(2) of Directive 2010/13 nonetheless permits the Member States provisionally to derogate from Article 3(1) thereof where an audiovisual media service provided by a media service provider under the jurisdiction of another Member State manifestly, seriously and gravely infringes point (a) of Article 6(1) or Article 6a(1) of that directive or prejudices or presents a serious and grave risk of prejudice to public health.
181    Furthermore, as is stated in recital 33 of Directive 2010/13, the country-of-origin principle, reflected in Article 2(1) and Article 3(1) of that directive, is essential for the creation of an internal market. That principle must be applied to all audiovisual media services in order to ensure legal certainty for media service providers as the necessary basis for new business models and the deployment of such services. The country-of-origin principle is also essential in order to ensure the free flow of information and audiovisual programmes in the internal market.
182    In the first place, it is necessary to verify whether Paragraph 179(2) of the Law on Media Services restricts retransmissions on Hungarian territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by Directive 2010/13, in breach of the rule set out in Article 3(1) of that directive.
183    In that regard, it should be emphasised that the European Convention on Transfrontier Television, which was drawn up at the same time as Directive 89/552 and to which both that directive and Directive 2010/13 refer, requires, in Article 4 thereof, which contains a similar provision to Article 3(1) of Directive 2010/13, that the parties to that convention ‘shall guarantee freedom of reception’ and ‘shall not restrict the retransmission’ on their territories of services which are within the scope of the convention and comply with its terms (see, to that effect, judgment of 4 July 2019, Baltic Media Alliance, C‑622/17, ‘the judgment in Baltic Media Alliance’, EU:C:2019:566, paragraph 69).
184    The Court has held in that context, in relation to Directive 89/552, Article 2a(1) and (2) of which corresponds, in essence, to Article 3(1) and (2) of Directive 2010/13, that Directive 89/552 established the principle of recognition, by the receiving Member State, of the control function of the originating Member State with respect to the audiovisual media services of providers falling within its jurisdiction (the judgment in Baltic Media Alliance, paragraph 71 and the case-law cited).
185    It has also emphasised that it is solely for the Member State from which audiovisual media services emanate to monitor the application of the law of the originating Member State applicable to those services and to ensure compliance with Directive 89/552, and that the receiving Member State is not authorised to exercise its own control for reasons which fall within the fields coordinated by that directive (the judgment in Baltic Media Alliance, paragraph 72 and the case-law cited).
186    By contrast, Directive 2010/13 does not in principle preclude the application of national rules with the general aim of pursuing an objective of general interest, provided that they do not involve a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out (the judgment in Baltic Media Alliance, paragraph 73 and the case-law cited).
187    Therefore, a national measure pursuing an objective of general interest which regulates certain aspects of the broadcasting or distribution of audiovisual media services is not covered by Article 3(1) and (2) of that directive, unless it involves a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out (the judgment in Baltic Media Alliance, paragraph 74 and the case-law cited).
188    Accordingly, a national measure does not constitute a restriction for the purposes of Article 3(1) of Directive 2010/13 if it has the general aim of pursuing a public policy objective and regulating the methods of distribution of a television channel to consumers of the receiving Member State, where those rules do not prevent the retransmission as such of that channel and where such a measure thus cannot be regarded as involving a second control of the channel’s broadcasts in addition to that which the broadcasting Member State is required to carry out (see, to that effect, the judgment in Baltic Media Alliance, paragraph 77).
189    In the present case, it must be pointed out that Paragraph 179(2) of the Law on Media Services introduces an obligation for the Media Council, in the event, inter alia, of infringement of the relevant provisions of that law, to request the broadcasting Member State under whose jurisdiction the media service provider in question falls to take effective measures. In that context, the Media Council is to request that Member State to intervene in order to put an end to the infringements which the Media Council has identified.
190    In accordance with Paragraph 179(4) of the Law on Media Services, the Media Council may enforce, inter alia, the legal consequences referred to in Paragraph 187(3)(c) of that law, which may entail, in the event of a serious, repeated offence, the suspension of the right to provide media services during a period the duration of which may be up to one week.
191    In addition, as is noted by the Commission, Paragraph 179 of the Law on Media Services applies to programmes which may adversely affect the physical, mental or moral development of minors, as referred to in Paragraph 9(6) of that law. Such a finding is sufficient to demonstrate that Paragraph 179 of the Law on Media Services falls within the fields coordinated by Directive 2010/13, as attested to by Article 6a of that directive, which is specifically intended to protect the physical, mental or moral development of minors by guarding them against audiovisual content that is not age-appropriate.
192    Consequently, Paragraph 179(2) of the Law on Media Services is liable to involve a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out. That second control is, in principle, contrary to Directive 2010/13, because it restricts retransmissions, on Hungarian territory, of audiovisual media services from other Member States within the meaning of Article 3(1) of that directive.
193    In the second place, it must be pointed out that the derogation from the country-of-origin principle introduced by Paragraph 179(2) of the Law on Media Services cannot be justified under Article 3(2) of Directive 2010/13.
194    Under the latter provision, a Member State may provisionally derogate from Article 3(1) of Directive 2010/13 where an audiovisual media service provided by a media service provider under the jurisdiction of another Member State manifestly, seriously and gravely infringes, inter alia, Article 6a(1) of that directive or prejudices or presents a serious and grave risk of prejudice to public health.
195    However, as has been stated in paragraphs 135 to 155 of the present judgment, the mere fact that audiovisual media services in the form of audiovisual programmes have as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality cannot justify the adoption, with regard to those programmes, of appropriate measures as referred to in Article 6a(1) of Directive 2010/13, on the ground that those programmes may impair the physical, mental or moral development of minors.
196    In addition, in accordance with the principles derived from the case-law referred to in paragraphs 127 to 133 of the present judgment, the expression ‘serious and grave risk of prejudice to public health’ used in Article 3(2) of Directive 2010/13 must be interpreted in line with, inter alia, Article 21(1) of the Charter, which prohibits any form of discrimination based on sex or sexual orientation. However, for reasons analogous to those set out, in particular, in paragraphs 135 to 154 of the present judgment, it must be found that audiovisual media services such as those referred to in Paragraph 9(6) of the Law on Media Services also cannot give rise to such a serious and grave risk of prejudice to public health for the purposes of Article 3(2) of that directive solely on the ground that they have as a defining element the promotion or portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality.
197    In those circumstances, Hungary also cannot validly rely on considerations of public order, public morality or public security to justify the exercise by the Media Council of the power conferred on it by Paragraph 179(2) of the Law on Media Services, read in conjunction with Paragraph 179(4)(a) and Paragraph 187(3)(c) of that law, with a view to restricting retransmissions of audiovisual media services from other Member States which have the characteristics referred to in Paragraph 9(6) of that law (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 37).
198    In the third place, contrary to Hungary’s assertions, there is also no basis for Paragraph 179(2) of the Law on Media Services in Article 4 of Directive 2010/13.
199    As can be seen from paragraph 160 of the present judgment, Member States have the option, under Article 4(1) of that directive, with regard to media service providers under their jurisdiction, of laying down more detailed or stricter rules and, in certain cases, different conditions, in the fields covered by that directive, provided that such rules are in compliance with EU law and, in particular, with its general principles.
200    In addition, Article 4(2) of Directive 2010/13 exceptionally permits, in essence, the imposition of such more detailed or stricter rules, adopted by a Member State, on a media service provider which is under the jurisdiction of another Member State but which provides an audiovisual media service which is wholly or mostly directed towards the territory of the first Member State.
201    However, the power which the Media Council derives from the provisions of the Law on Media Services referred to in paragraph 197 of the present judgment, regarding programmes which have the characteristics referred to in Paragraph 9(6) of that law, cannot, in any event, constitute a lawful implementation of Article 4(2) of that directive.
202    Indeed, it follows from the very wording of the latter provision that a Member State may not rely thereon except where it has exercised its freedom, under Article 4(1) of Directive 2010/13, to adopt more detailed or stricter rules of general public interest in compliance with EU law.
203    However, it has been stated in paragraph 162 of the present judgment that Paragraph 9(6) of the Law on Media Services, read in conjunction with Paragraph 10(1)(d) of that law, cannot constitute a rule corresponding to that description, given that it does not respect the essence of Article 21(1) of the Charter.
204    In those circumstances it must be concluded that the second part of the first plea in law is well founded.
(c)    Infringement of Article 9(1)(c)(ii) of Directive 2010/13
(1)    Arguments of the parties
205    By the third part of the first plea in law, the Commission submits that Hungary has failed to fulfil its obligations under Article 9(1)(c)(ii) of Directive 2010/13.
206    It notes that Paragraph 8(1a) of the Law on Commercial Advertising prohibits making available to persons under the age of 18 advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
207    In the first place, the Commission argues that that measure is in breach of the prohibition on discrimination based on sex or sexual orientation laid down in Article 9(1)(c)(ii) of Directive 2010/13, which constitutes the expression of the general principle prohibiting discrimination, as a general principle of EU law now enshrined in Article 21 of the Charter. The prohibition on commercial communications depicting deviation from the self-identity corresponding to the sex assigned at birth or promoting or portraying gender reassignment or homosexuality results in the de facto elimination of representation, in those communications, of non-cisgender or non-heterosexual persons or non-cisgendered or non-heterosexual lives, even though these are an integral part of a society in which pluralism and diversity prevail, in accordance with the values referred to in Article 2 TEU.
208    In that regard, the Commission emphasises that, according to settled case-law concerning the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), discrimination based on sex cannot be confined simply to discrimination based on the fact that a person is of one sex or another, as that directive is also applicable, in view of its purpose and the nature of the rights which it seeks to safeguard, to discrimination arising from the gender reassignment of the person concerned (judgment of 27 April 2006, Richards, C‑423/04, EU:C:2006:256, paragraph 24 and the case-law cited). That case-law must also apply to discrimination based on deviation from the self-identity corresponding to the sex assigned at birth.
209    In the second place, Paragraph 8(1a) of the Law on Commercial Advertising reveals, indeed requires, a difference in treatment on the basis of gender identity or sexual orientation, given that, besides laying down a provision intended to protect minors from exposure to any form of sexuality, it lays down a prohibition on advertising which promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
210    In the third place, Article 9(1)(c)(ii) of Directive 2010/13 does not constitute a legal basis permitting derogation from the principle of non-discrimination. Indeed, there is no provision which authorises the Member States to justify direct discrimination based on, inter alia, sex or sexual orientation.
211    Nor can Paragraph 8(1a) of the Law on Commercial Advertising, which introduces discrimination based on sex or sexual orientation, be justified, on the basis of Article 9(1)(g) of that directive, as a measure intended to prevent the causing of mental or moral detriment to minors.
212    In the fourth place, the fact that Paragraph 24(1) of the Law on Media Services prohibits discriminatory content in commercial communications cannot, as such, legitimise the infringement of Article 9(1)(c)(ii) of Directive 2010/13 by Paragraph 8(1a) of the Law on Commercial Advertising.
213    Hungary contends, in the first place, that Paragraph 8(1a) of the Law on Commercial Advertising cannot infringe Directive 2010/13 because the advertising available in media services is regarded as constituting a commercial communication within the meaning of the special rules of the Law on Media Services and, accordingly, the Law on Commercial Advertising and that directive do not coincide as to their respective material scopes.
214    In addition, commercial communications in media services are not distinct, from the point of view of the protection of minors, from other media content, with the result that the protective measures apply in the same way to all programmes. Were it otherwise, the general interest objective of protecting minors could not be achieved. Regarding media services, it is necessary to interpret the provisions of the Law on Commercial Advertising in conjunction with the provisions of the Law on Media Services and those of Law No CIV of 2010 on the freedom of the press and the fundamental rules applicable to media content. Such a joint interpretation makes it apparent that only the special rules of the Law on Media Services apply to commercial communications presented in media services.
215    In the second place, that Member State maintains that Paragraph 8(1a) of the Law on Commercial Advertising does not constitute a prohibition on broadcasting, but must rather be regarded, under the principle of proportionate interference, as legislation which is justified and necessary for the purposes of the protection of minors.
216    In the third place, Paragraph 24(1) of the Law on Media Services itself lays down a prohibition on discrimination for the purposes of Article 9(1)(c)(ii) of Directive 2010/13.
217    It follows that Paragraph 8(1a) of the Law on Commercial Advertising is not contrary to Article 9(1)(c)(ii) of that directive.
(2)    Findings of the Court
218    As a preliminary point, it should be borne in mind that, in accordance with Article 1(1)(a)(ii) of Directive 2010/13, audiovisual commercial communications are included in the concept of ‘audiovisual media service’ within the meaning of that directive.
219    Article 1(1)(h) of that directive provides a broad definition of the concept of ‘audiovisual commercial communication’, as is stated in recital 31 thereof. That concept thus covers ‘images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person pursuing an economic activity’ with such images ‘accompany[ing], or [being] included in, a programme … in return for payment or for similar consideration or for self-promotional purposes’ and forms of audiovisual commercial communication ‘includ[ing], inter alia, television advertising, sponsorship, teleshopping and product placement’.
220    Furthermore, Article 9(1)(c)(ii) of Directive 2010/13 provides that Member States are to ensure that audiovisual commercial communications provided by media service providers under their jurisdiction do not include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation.
221    By that provision, the EU legislature provided for a ground prohibiting, inter alia, discrimination based on sex or sexual orientation, a ground which is a corollary of the obligation to observe the principle of non-discrimination (see, by analogy, judgment of 26 June 2025, Makeleio and Zougla, C‑555/23 and C‑556/23, EU:C:2025:484, paragraph 70).
222    That provision thus gives concrete expression, in the field covered thereby, to the general principle of non-discrimination now enshrined in Article 21 of the Charter, which prohibits any discrimination based on, inter alia, sex or sexual orientation, that prohibition being, as has been recalled in paragraph 131 of the present judgment, mandatory as a general principle of EU law.
223    In the present case, it should be noted that, in accordance with Paragraph 8(1a) of the Law on Commercial Advertising, ‘it shall be prohibited to make available to persons under the age of 18 advertising that depicts sexuality for its own purposes, or that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.’
224    In that regard, in the first place, it is necessary to set aside Hungary’s argument that advertising available in media services, as referred to in that provision, should be interpreted in the light of the Law on Media Services and Law No CIV of 2010 on the freedom of the press and the fundamental rules applicable to media content, with the result that that provision does not fall within the material scope of Directive 2010/13.
225    In view of the very broad scope of the concept of ‘advertising’ used in Paragraph 8(1a) of the Law on Commercial Advertising, it must be found that that concept may be included in the concept of ‘audiovisual commercial communication’ referred to in Article 1(1)(h) of that directive, as the latter concept may include, inter alia, as has been recalled in paragraph 219 of the present judgment, television advertising and product placement.
226    In that context, Hungary’s assertion concerning the exclusive application of the special rules of the Law on Media Services to commercial communications presented in media services cannot succeed.
227    In the second place, it is necessary to verify whether Paragraph 8(1a) of the Law on Commercial Advertising is in breach of Article 9(1)(c)(ii) of Directive 2010/13.
228    As can be seen from settled case-law, referred to in paragraph 133 of the present judgment, discrimination based on sex cannot be confined simply to discrimination based on the fact that a person is of one sex or another. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of that provision is such as to apply not only to discrimination arising from a change of gender of the person concerned, that is to say, from gender reassignment, but also to discrimination based on deviation from the self-identity corresponding to the sex assigned at birth.
229    Given that Paragraph 8(1a) of the Law on Commercial Advertising unconditionally excludes advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality from being made available to persons under the age of 18, that provision must be regarded as engaging in discrimination directly based on sex and sexual orientation. The prohibition laid down by that provision has the effect, in practice, of compelling providers of audiovisual media services falling within its scope to engage in discrimination based on sex and sexual orientation, because it deprives them of any possibility of making such advertising available to persons under the age of 18.
230    Consequently, the prohibition on making such advertising available to minors under Paragraph 8(1a) of that law is in breach of Article 9(1)(c)(ii) of Directive 2010/13, interpreted in the light of the prohibition on any discrimination based on sex or sexual orientation laid down in Article 21(1) of the Charter.
231    That discrimination cannot be justified in view of the general interest objective relied on by that Member State, namely the protection of minors against advertising containing allegedly harmful content.
232    It is true that, as can be seen from recital 104 of Directive 2010/13, the EU legislature has emphasised that the protection of minors against the presence of audiovisual content likely to be harmful to them constitutes an objective of general interest worthy of a high level of protection (see, to that effect, judgment of 23 March 2023, Booky.fi, C‑662/21, EU:C:2023:239, paragraph 40).
233    However, by analogy with what has been stated in paragraphs 135 to 162 of the present judgment, minors may be adequately protected against content which is not age-appropriate without there being direct discrimination in that regard based on sex and sexual orientation such as that resulting from Paragraph 8(1a) of the Law on Commercial Advertising, which does not respect the essence of Article 21(1) of the Charter.
234    For the same reasons, Paragraph 8(1a) of that law also cannot constitute a measure seeking to prevent mental or moral detriment being caused to minors for the purposes of Article 9(1)(g) of that directive.
235    In those circumstances, it must be concluded that the third part of the first plea in law is well founded.
(d)    Conclusion
236    Having regard to all the foregoing considerations, it must be concluded that the first plea in law is well founded.
2.      Second plea in law, alleging infringements of Article 3(2) of Directive 2000/31
(a)    Whether there is a restriction for the purposes of Article 3(2) of Directive 2000/31
(1)    Paragraph 6/A of the Law on the Protection of Children
(i)    Arguments of the parties
237    By the first part of the second plea in law, the Commission argues that Hungary has failed to fulfil its obligations under Article 3(2) of Directive 2000/31.
238    It notes that Paragraph 6/A of the Law on the Protection of Children prohibits making available to persons under the age of 18 content that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
239    In the first place, that institution submits that that provision is covered by the prohibition referred to in Article 3(2) of Directive 2000/31, as that provision of that directive does not require the national rule to apply explicitly or exclusively to information society services.
240    In that regard, first, the provisions of the Law on the Protection of Children are capable of having a direct impact on information society services, as Article 2(a) of that directive provides a broad definition of those services.
241    Second, as can be seen from the case-law derived from the judgment of 14 July 2022, ASADE (C‑436/20, EU:C:2022:559, paragraph 63 and the case-law cited), services carried out in the public interest and without a profit motive, which are in competition with those offered by operators pursuing a profit motive, are regarded as economic activities for the purposes of Article 57 TFEU.
242    Third, the fact, relied on by Hungary, that entities covered by Paragraph 6/A of the Law on the Protection of Children may also carry on some non-economic activities is irrelevant in that regard, given that those entities can still carry on other activities which constitute information society services. Similarly, the fact that those entities are private service providers cannot be relied upon as an argument against classifying their activities as the provision of services.
243    Fourth, in view of the case-law derived from the judgments of 11 September 2014, Papasavvas (C‑291/13, EU:C:2014:2209, paragraph 28), and of 15 September 2016, Mc Fadden (C‑484/14, EU:C:2016:689, paragraph 41), the fact that the service is paid for by a third party and not by the recipient of that service is also irrelevant.
244    Fifth and last, Article 4(2) of Directive 2000/31 is entirely irrelevant in the present case, given that Paragraph 6/A of the Law on the Protection of Children constitutes a requirement and not an authorisation scheme.
245    In the second place, the Commission argues that Paragraph 6/A of the Law on the Protection of Children is included in the concept of ‘coordinated field’ within the meaning of Article 2(h) of that directive, as that provision covers the requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.
246    In the third place, in accordance with Paragraph 1(1) of the Law on the Protection of Children, that law covers a wide range of public and private organisations, natural and legal persons entrusted with providing protection for children, as well as other organisations without legal personality, who are to ensure the enforcement of the rights and interests of children as enshrined in law and the fulfilment of parental duties. The application of that law to private organisations follows from points (sc) to (se) of Paragraph 5(s) thereof, which refers to the ‘non-State’ authority.
247    It follows that a wide range of public or private organisations and natural and legal persons are prevented from providing or using information society services, such as the online purchasing of books or electronic media, if these convey content which promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality. Those service providers must either withdraw that content from those services, or abandon providing them entirely.
248    Accordingly, Paragraph 6/A of the Law on the Protection of Children is liable to prohibit, hinder, or render less attractive the provision of information society services from another Member State, in breach of Article 3(2) of Directive 2000/31.
249    Hungary contends, in the first place, that the scope of the Law on the Protection of Children does not extend to the provision of information society services within the meaning of Article 2(a) of Directive 2000/31, given that the services governed by that law are not of an economic nature and the concept of a ‘service’ under EU law requires that such a service be provided in return for remuneration in connection with an economic activity.
250    First, the services covered by the Law on the Protection of Children include services the economic nature of which is not the decisive factor, as that law covers services provided by the State in the social sphere.
251    Second, Paragraph 6/A of the Law on the Protection of Children applies to services which are not provided by electronic means, namely basic services relating to children’s well-being and specialised child protection services which involve cash benefits, care-related benefits in kind, and personal care. The Commission has neither demonstrated the existence of competing services for the purposes of Article 57 TFEU nor indicated which part of the basic services relating to children’s well-being and specialised child protection services could be covered by that provision.
252    Therefore, there is no link between Directive 2000/31 and the Law on the Protection of Children, as that law does not place restrictions on acts of online purchasing as information society services, but on acts whereby potentially harmful content is made available to children, as well as on the use of such content in the context of educational activities. Educational activity and defining the content of such activity falls within the exclusive competence of the Member States, in accordance with Article 165 TFEU. Accordingly, that law cannot infringe either that directive or Article 3(2) thereof.
253    Third, the Commission’s position that prohibitions which are not specifically targeted at information society services fall within the scope of Directive 2000/31 is incorrect. This is confirmed by Article 4(2) of that directive, which provides that the prohibition on prior authorisation laid down in Article 4(1) thereof is without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services.
254    In the second place, even assuming that Paragraph 6/A of the Law on the Protection of Children covers ‘information society services’ within the meaning of Directive 2000/31, that provision is not part of the coordinated field of that directive.
255    Indeed, in accordance with the third indent of Article 2(h)(ii) of that directive, the coordinated field does not cover ‘requirements applicable to services not provided by electronic means’. Accordingly, in order to come within the scope of Directive 2000/31, restrictions on the free movement of information society services within the meaning of that directive must be specifically and exclusively targeted at those services. However, the services provided for in Paragraph 6/A of the Law on the Protection of Children include services which are not provided by electronic means.
256    In the third place, Hungary specifies that Paragraph 6/A of the Law on the Protection of Children does not have the result that service providers concerned by that provision must withdraw the content concerned or abandon providing those cross-border services, as that provision merely provides that the organisations and persons falling within its scope must not present such content to minors in the context of the legal relationships governed by that law.
(ii) Findings of the Court
257    As a preliminary point, it should be borne in mind that, in accordance with Article 1(1) and (2) of Directive 2000/31, read in the light of recital 8 thereof, that directive seeks to contribute to the proper functioning of the internal market through the creation of a legal framework to ensure the free movement of information society services between Member States, approximating, to the extent necessary for the achievement of that objective, certain national provisions on those services.
258    Article 2(a) of that directive, read in conjunction with Article 1(1)(b) of Directive 2015/1535, defines ‘information society services’ as being ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’, it being understood, as can be seen from recital 18 of Directive 2000/31, that those services span a wide range of economic activities which take place online.
259    Article 3 of Directive 2000/31 is, for its part, a central provision in the scheme and system put in place by that directive, in so far as it enshrines the principle of control in the originating Member State, which is also referred to in recital 22 of that directive, which states that ‘information society services should be supervised at the source of the activity’ (judgment of 9 November 2023, Google Ireland and Others, C‑376/22, EU:C:2023:835, paragraph 40).
260    According to Article 3(1) of Directive 2000/31, each Member State is to ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field, that field covering, as is stated in Article 2(h) of that directive, the requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.
261    In accordance with the second indent of Article 2(h)(i) of Directive 2000/31, the ‘coordinated field’ concerns requirements connected with the pursuit of the activity of an information society service, such as requirements concerning, inter alia, the behaviour of the service provider, or requirements regarding the quality or content of the service ‘including those applicable to advertising’.
262    Furthermore, Article 3(2) of that directive provides that Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
263    Accordingly, Directive 2000/31 is based on the application of the principle of control in the originating Member State and the principle of mutual recognition, so that, within the coordinated field defined in Article 2(h) of that directive, information society services are regulated solely in the Member State on whose territory the providers of those services are established (judgment of 9 November 2023, Google Ireland and Others, C‑376/22, EU:C:2023:835, paragraph 42 and the case-law cited).
264    In the present case, Paragraph 6/A of the Law on the Protection of Children provides that, ‘in order to safeguard the objectives set out in this Law and to ensure the protection of children’s rights, making the following available to persons under the age of 18 shall be prohibited: pornography, as well as content that depicts sexuality for its own purposes, or that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality’.
265    In order to assess whether that provision introduces a restriction on the freedom to provide information society services from another Member State for the purposes of Article 3(2) of Directive 2000/31, it is necessary to verify, in the first place, whether the services referred to in Paragraph 6/A of that law are included in the concept of ‘information society services’ within the meaning of Article 2(a) of that directive.
266    In that regard, there is no doubt that the content referred to in Paragraph 6/A of the Law on the Protection of Children may be provided at a distance, by electronic means and at the individual request of a recipient of services for the purposes of Article 2(a) of Directive 2000/31, read in conjunction with Article 1(1)(b) of Directive 2015/1535.
267    In addition, regarding the condition that that content must ‘normally’ be ‘provided for remuneration’, it should be borne in mind that services normally provided for remuneration constitute economic activities, the essential characteristic of remuneration residing in the fact that it constitutes financial consideration for the service in question, without however having to be paid by the recipient of that service (see, to that effect, judgments of 15 September 2016, Mc Fadden, C‑484/14, EU:C:2016:689, paragraph 41, and of 14 July 2022, ASADE, C‑436/20, EU:C:2022:559, paragraph 60 and the case-law cited).
268    Moreover, services provided for remuneration which, without falling within the exercise of public powers, are carried out in the public interest and without a profit motive and are in competition with those offered by operators pursuing a profit motive, may be regarded as economic activities (judgment of 14 July 2022, ASADE, C‑436/20, EU:C:2022:559, paragraph 63 and the case-law cited).
269    Furthermore, as was noted by the Advocate General in point 323 of her Opinion, the freedom to provide information society services is for the benefit of both providers and recipients of services (see, by analogy, judgments of 6 October 2009, Commission v Spain, C‑153/08, EU:C:2009:618, paragraph 29, and of 2 March 2023, Recreatieprojecten Zeeland and Others, C‑695/21, EU:C:2023:144, paragraph 13 and the case-law cited).
270    In the present case, in view of the wide range of persons to whom Paragraph 6/A of the Law on the Protection of Children may apply, it cannot be excluded, contrary to Hungary’s assertions, that some of those persons provide services which are of an economic nature in connection with activities under that provision and that such services are thus included in the concept of ‘information society services’ within the meaning of Directive 2000/31.
271    Accordingly, that Member State’s argument that the Law on the Protection of Children also covers content used in the context of educational activities, which fall within the exclusive competence of the Member States in accordance with Article 165 TFEU, cannot succeed.
272    In that regard, it follows from the case-law of the Court that, while EU law does not affect the competence of the Member States as regards, first, the content of teaching and the organisation of education systems and their cultural and linguistic diversity, and, second, the content and organisation of vocational training, as can be seen from Article 165(1) and Article 166(1) TFEU, the fact remains that, when exercising that competence, Member States must comply with EU law, in particular the provisions on the freedom to provide services (see, to that effect and by analogy, judgments of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 58, and of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 59 and the case-law cited).
273    In addition, Paragraph 6/A of the Law on the Protection of Children is likely to have the effect of preventing persons who fall within its scope from using, for example for educational purposes, information society services in connection with the services covered by that provision, even if they do not provide those services themselves. In view of the case-law referred to in paragraph 269 of the present judgment, such services must be regarded as ‘information society services’ within the meaning of Article 2(a) of Directive 2000/31 and, accordingly, as falling within the scope of that directive.
274    In the second place, it is necessary to examine whether Paragraph 6/A of the Law on the Protection of Children is included in the concept of ‘coordinated field’ within the meaning of Article 2(h) of that directive.
275    As can be seen from paragraphs 260 and 261 of the present judgment, the coordinated field, within the meaning of Article 2(h) of Directive 2000/31, read in the light of recital 21 thereof, covers the requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them, provided that those requirements satisfy the conditions laid down in that article.
276    In accordance with the second indent of Article 2(h)(i) of Directive 2000/31, the ‘coordinated field’ concerns requirements connected with the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, or requirements regarding the quality or content of the service.
277    In that regard, it should be specified that the requirements established by Paragraph 6/A of the Law on the Protection of Children, which exclude certain content from being presented to minors and which must, therefore, be regarded as imposing restrictions on the content of services which may be provided as information society services, concern the pursuit of the activity of an information society service, such as requirements regarding the content of the service, in accordance with the second indent of Article 2(h)(i) of Directive 2000/31. They are thus included in the coordinated field within the meaning of Article 2(h) of that directive.
278    First, that finding is not called into question by the fact, relied on by Hungary, that that law does not specifically refer to the regulation of information society services. Indeed, that fact is irrelevant in view of the general nature of the requirements laid down by that law which, as has been indicated in the preceding paragraph, are covered by Article 2(h) of Directive 2000/31.
279    Second, it is also not possible to accept the argument put forward by that Member State that the services covered by the Law on the Protection of Children include services not provided by electronic means but by means of care-related benefits in kind and personal care, as that Member State has not established that, despite the very broad wording of Paragraph 6/A of that law, those services cannot in any circumstances be provided by electronic means.
280    Accordingly, it must be held that the wide range of services covered by the prohibition laid down in Paragraph 6/A of the Law on the Protection of Children may also apply to services provided by electronic means.
281    In the third place, it must be found that that prohibition restricts the freedom to provide information society services from another Member State for the purposes of Article 3(2) of Directive 2000/31, as that prohibition reduces the possibility for service providers established in another Member State to provide services containing content covered by that prohibition to their potential clientele residing in Hungary, and thus renders the activity of offering such services in that Member State less attractive.
(2)    Paragraph 8(1a) of the Law on Commercial Advertising
(i)    Arguments of the parties
282    By the second part of the second plea in law, the Commission argues that Hungary has failed to fulfil its obligations under Article 3(2) of Directive 2000/31.
283    It notes that Paragraph 8(1a) of the Law on Commercial Advertising prohibits making available to persons under the age of 18 advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
284    That provision imposes new obligations on advertisers, including those established in other Member States, which restrict their freedom to provide services. In that regard, in order to establish a restriction for the purposes of Article 3(2) of Directive 2000/31, it is sufficient that the legislation applies to information society services and that it is liable to prohibit, hinder, or render less attractive the exercise of the freedom to provide services. A piece of national legislation prohibiting certain content, even if it does not lay down a prohibition on advertising, is liable to limit the free movement of services for providers and recipients.
285    In the present case, first, Paragraph 8(1a) of the Law on Commercial Advertising applies to information society services within the meaning of that directive.
286    Second, as the second indent of Article 2(h)(i) of Directive 2000/31 expressly refers to requirements ‘applicable to advertising’, Paragraph 8(1a) of the Law on Commercial Advertising is also included in the coordinated field within the meaning of that directive.
287    It is true that Directive 2000/31 harmonises only certain aspects as regards the provision of information society services. However, the country-of-origin principle set out in Article 3 of that directive applies, including its procedural and substantive rules. Applying Directive 2000/31 only to the matters covered by Articles 6 to 8 of that directive, which relate to commercial communications, would be contrary to the wording, the objective and the scheme of the general prohibition on restricting the free movement of information society services laid down in Article 3(2) thereof.
288    Hungary recalls, in the first place, that, as can be seen from recital 10 thereof, Directive 2000/31 brings about only minimal harmonisation, which does not affect the level of protection of general interest objectives, in particular the objective of protecting minors pursued by the Law on Commercial Advertising.
289    The fact that advertising is subject, in several Member States, to specific rules and prohibitions with regard to minors demonstrates that those rules are not liable to render less attractive the cross-border provision of services in the sphere of information and communication. Such an interpretation is, moreover, supported by Article 3(4) of that directive.
290    In the second place, the concept of ‘coordinated field’ within the meaning of Article 2(h) of Directive 2000/31 does not extend to requirements relating to information society services which are not ancillary to and inseparable from those services. Accordingly, that directive cannot prevent the Member States from adopting measures intended to protect minors.
(ii) Findings of the Court
291    In the first place, it should be pointed out that Hungary does not dispute, in the present case, that the advertising services referred to in Paragraph 8(1a) of the Law on Commercial Advertising are liable to constitute ‘information society services’ within the meaning of Article 2(a) of Directive 2000/31, read in conjunction with Article 1(1)(b) of Directive 2015/1535, which thus fall within the scope of Directive 2000/31.
292    In the second place, it should be emphasised, in view of the scope of the concept of ‘coordinated field’ as set out in the second indent of Article 2(h)(i) of Directive 2000/31, recalled in paragraph 261 of the present judgment, that the prohibition on making available to minors advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, under Paragraph 8(1a) of that law, is indeed included in that concept, which expressly refers to ‘requirements regarding the quality or content of the service including those applicable to advertising’.
293    In that context, Hungary’s argument that Paragraph 8(1a) of the Law on Commercial Advertising is not specifically targeted at information society services and is not part of the ‘coordinated field’, in so far as that field does not extend to requirements relating to information society services which are not ancillary to and inseparable from those services, cannot succeed.
294    Indeed, according to the wording of Article 2(h) of Directive 2000/31, requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them, are included in the concept of ‘coordinated field’.
295    In that regard, it follows from the case-law of the Court that it is not necessary that ‘the specific aim and object’ of the entirety of a requirement be to regulate information society services, as it is sufficient that the requirement should pursue that aim or object in some of its provisions (see, by analogy, judgment of 12 September 2019, VG Media, C‑299/17, EU:C:2019:716, paragraph 32 and the case-law cited).
296    In the third place, it should be specified that Paragraph 8(1a) of the Law on Commercial Advertising restricts the freedom to provide information society services from another Member State for the purposes of Article 3(2) of Directive 2000/31, inasmuch as that provision renders the exercise of the freedom to provide services less attractive, by prohibiting the making available to minors of advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
(b)    Whether the restrictions in question may be justified under Article 3(4) of Directive 2000/31
(1)    Arguments of the parties
297    The Commission submits that Hungary may not derogate, under Article 3(4) of Directive 2000/31, from the prohibition, laid down in Article 3(2) of that directive, on restrictions on information society services from other Member States.
298    The prohibition on making available to minors content or advertising promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, as laid down in Paragraph 6/A of the Law on the Protection of Children, on the one hand, and in Paragraph 8(1a) of the Law on Commercial Advertising, on the other, cannot be regarded as necessary in view of the general interest objectives set out in Article 3(4) of Directive 2000/31.
299    Although the protection of the child or the protection of the right of the parent to raise his or her child is a legitimate public interest, reliance thereon is not sufficient in itself to justify a derogation from the prohibition on restricting the freedom to provide information society services, as the concepts of ‘public policy’, ‘public security’ or ‘public health’ cannot be defined by the Member States on a discretionary basis. In the light of the judgment of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123), it is necessary to provide specific proof, in relation to the circumstances of the present case, of the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.
300    Hungary contends that the Commission has itself acknowledged, in its application, that the objective of protecting minors is expressly included among the general interest objectives that may justify a restriction on the provision of information society services from another Member State, a restriction which is in principle prohibited by Article 3(2) of Directive 2000/31. That objective cannot be effectively attained using less restrictive measures.
301    The Law on the Protection of Children and the Law on Commercial Advertising are necessary to achieve the general interest objective of protecting minors and the right of parents to be able to take decisions relating to their children’s education.
302    Concerning the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society, Hungary remarks that the Member States have a margin of assessment concerning both the measures taken to protect the objective in question and the stringency of such measures.
(2)    Findings of the Court
303    As a preliminary point, it should be borne in mind that, pursuant to Article 3(4)(a) of Directive 2000/31, Member States may, in respect of a given information society service, take measures that derogate from Article 3(2) of that directive, provided, first, that those measures are necessary in the interests of public policy, the protection of public health, public security or the protection of consumers, second, that those measures are taken against an information society service which actually undermines those objectives or constitutes a serious and grave risk to those objectives, and, third, that those measures are proportionate to those objectives (judgment of 27 February 2025, Apothekerkammer Nordrhein, C‑517/23, EU:C:2025:122, paragraph 78 and the case-law cited).
304    According to the very wording of the first indent of Article 3(4)(a)(i) of Directive 2000/31, the concept of ‘public policy’ referred to therein ‘includ[es] the protection of minors’, which corresponds to the objective primarily relied on in the present case by Hungary in order to justify the restrictions on the freedom to provide information society services at issue in the second plea in law.
305    However, in accordance with the case-law referred to in paragraphs 129 to 133 of the present judgment, a Member State cannot rely on an interpretation of that provision of Directive 2000/31 that would be in breach of the prohibition, enshrined in Article 21(1) of the Charter, of any discrimination based on sex or sexual orientation, that prohibition being mandatory as a general principle of EU law.
306    For reasons analogous to those set out in paragraphs 135 to 162 of the present judgment, as well as in paragraphs 229 to 233 thereof, it must be found that both Paragraph 6/A of the Law on the Protection of Children and Paragraph 8(1a) of the Law on Commercial Advertising engage in discrimination directly based on sex and sexual orientation, as those provisions do not respect the essence of Article 21(1) of the Charter.
307    Accordingly, the respective restrictions on the freedom to provide information society services from another Member State established by Paragraph 6/A of the Law on the Protection of Children and Paragraph 8(1a) of the Law on Commercial Advertising cannot be regarded as necessary, for the purposes of Article 3(4)(a)(i) of Directive 2000/31, to ensure that the legitimate objective of protecting minors is achieved.
308    Furthermore and in any event, it must be emphasised that, as is apparent from the very wording of Article 3(4)(a)(ii) of that directive, only measures ‘taken against a given information society service’ may be covered by that provision.
309    That provision must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services do not fall within the concept of measures ‘taken against a given information society service’ referred to in that provision (judgment of 30 May 2024, Airbnb Ireland and Amazon Services Europe, C‑662/22 and C‑667/22, EU:C:2024:432, paragraph 70 and the case-law cited).
310    In the present case, Paragraph 6/A of the Law on the Protection of Children and Paragraph 8(1a) of the Law on Commercial Advertising are general and abstract measures, with the result that they do not satisfy the condition laid down in Article 3(4)(a)(ii) of Directive 2000/31.
(c)    Conclusion
311    Having regard to all the foregoing considerations, it must be concluded that the second plea in law is well founded.
3.      Third plea in law, alleging infringements of Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU
(a)    Whether there is a restriction for the purposes of Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU
(1)    Paragraph 6/A of the Law on the Protection of Children
(i)    Arguments of the parties
312    By the first part of the third plea in law, the Commission argues that Hungary has failed to fulfil its obligations under Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU.
313    It recalls, in that context, that Paragraph 6/A of the Law on the Protection of Children lays down a prohibition on making available to persons under the age of 18 content that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality and that that provision is therefore likely to affect the cross-border supply of services.
314    Paragraph 6/A of the Law on the Protection of Children applies to the provision of information society services and concerns not only services provided by public bodies, but also services provided by natural and legal persons, as well as by organisations without legal personality. That paragraph is addressed to public or private bodies which ensure the enforcement of the rights and interests of children as enshrined in law and the fulfilment of parental duties.
315    Given that they can also be provided for remuneration, those services are included in the concept of ‘service’ for the purposes of the FEU Treaty and Directive 2006/123. In that regard, the non-profit nature of a service falling within the scope of Paragraph 6/A of the Law on the Protection of Children, even one provided by private entities, does not preclude that service from being classified as a ‘service’ for the purposes of EU law. This is also apparent from the clear wording of Paragraph 5(s)(se) of the Law on the Protection of Children, which refers to ‘the conditions necessary for the performance of tasks relating to the provision of child welfare and child protection services’.
316    Thus, service providers established in another Member State may offer childcare services in Hungary to anyone, in the form of daycare, nursery school, private tutoring, au pairing or training courses.
317    In addition, nationals of other Member States benefit from services to which Paragraph 6/A of the Law on the Protection of Children applies during their stay in Hungary, as Paragraph 4(1) of that law also refers to the children of foreign nationals exercising their right of free movement in that Member State for a period of more than three months.
318    The cross-border nature of those services is not undermined by recital 114 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), as that recital does not define the scope of Directive 2006/123 or Article 56 TFEU.
319    Furthermore, Paragraph 6/A of the Law on the Protection of Children cannot be the subject of an exception under Article 2(2) of Directive 2006/123, in so far as Paragraph 6/A of that law simultaneously restricts the freedom to provide cross-border services and the freedom to receive such services for the purposes of Articles 16 and 19 of that directive, as well as Article 56 TFEU.
320    In particular, Paragraph 6/A of the Law on the Protection of Children cannot be covered by the exception provided for in Article 2(2)(j) of Directive 2006/123, which exempts from the application of that directive social services relating to childcare which are provided by the State. That exception does not apply to (i) services provided in that area by private bodies or (ii) childcare in general.
321    Hungary contends, first, that Paragraph 6/A of the Law on the Protection of Children applies only within the framework of the institutional child protection scheme. Second, services and measures intended to protect children are not services of an economic nature provided for remuneration and are, in any event, covered by the exception provided for in Article 2(2)(j) of Directive 2006/123.
322    The fact that those services are provided by natural and legal persons, as well as by other organisations without legal personality does not alter their non-profit nature, as Paragraph 5(s) of the Law on the Protection of Children designates persons and organisations which are authorised to carry on activities promoting the well-being and protection of children.
323    Accordingly, even if such services were provided by providers mandated by the State or by charities recognised by the State, such provision would be covered by the exception provided for in Article 2(2)(j) of Directive 2006/123. That provision is, according to Hungary, equivalent to the provision of social services in the areas of childcare and support of families for the purposes of that directive. That Member State adds that private organisations carrying on activities of a social nature outside the framework of the Law on the Protection of Children are thus not concerned by Paragraph 6/A of that law. Furthermore, there can be no question of an infringement of Article 19 of that directive, that is to say, a restriction on the use of a service supplied by a provider established in another Member State, because the services concerned by the Law on the Protection of Children can be provided only in Hungary.
324    Account must be taken, in that regard, of recital 114 of Directive 2014/24, which recalls that ‘certain categories of services continue by their very nature to have a limited cross-border dimension, namely such services that are known as services to the person, such as certain social, health and educational services.’
325    In any event, Paragraph 6/A of the Law on the Protection of Children does not affect the freedom of service providers to access the Hungarian market, but restricts, in connection with the services covered thereby, the access of minors to the content covered by that provision.
(ii) Findings of the Court
326    As a preliminary point, regarding the freedom to provide services referred to in Article 56 TFEU, it should be borne in mind that the extent of that freedom is given concrete expression by, inter alia, Directive 2006/123 (see, to that effect, judgment of 30 May 2024, Airbnb Ireland and Amazon Services Europe, C‑662/22 and C‑667/22, EU:C:2024:432, paragraph 47).
327    According to the case-law of the Court, it follows, in essence, from recital 7 of Directive 2006/123 that that directive provides for targeted harmonisation in order to establish a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity and its system of regulation. In addition, it should be borne in mind that, where a matter is the subject of harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure (judgment of 19 June 2025, Commission v Poland (Advertising for pharmacies), C‑200/24, EU:C:2025:459, paragraph 65 and the case-law cited).
328    As is stated in Article 1(1) thereof, Directive 2006/123 establishes general provisions facilitating, inter alia, the free movement of services, while maintaining a high quality of services.
329    According to Article 2(1) thereof, the directive applies to services supplied by providers established in a Member State, the concept of ‘service’ being defined in Article 4(1) of that directive as being ‘any self-employed economic activity, normally provided for remuneration, as referred to in [Article 57 TFEU]’.
330    However, Article 2(2) of Directive 2006/123 excludes a series of activities from the scope of that directive, in particular, according to points (a), (i) and (j) of that provision, non-economic services of general interest, activities which are connected with the exercise of official authority, and social services relating to childcare and support of families.
331    Furthermore, under Article 3(1) of Directive 2006/123, that directive does not apply if its provisions conflict with a provision of another EU act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions (judgment of 3 December 2020, Star Taxi App, C‑62/19, EU:C:2020:980, paragraph 78 and the case-law cited). It follows, as was noted by the Advocate General in point 330 of her Opinion, that Directive 2006/123 imposes general rules that enable the application of mutual recognition in the area of services other than audiovisual or information society services.
332    In addition, Article 16(1) of Directive 2006/123 provides, in the first two subparagraphs thereof, first, that Member States are to respect the right of providers to provide services in a Member State other than that in which they are established, and, second, that the Member State in which the service is provided is to ensure, inter alia, free exercise of a service activity within its territory. Under the third subparagraph of that provision, Member States may not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the principles of non-discrimination, necessity or proportionality.
333    According to Article 16(3) of Directive 2006/123, the Member State to which the provider moves has the option of imposing requirements with regard to the provision of a service activity, where they are justified for reasons of, inter alia, public policy, in accordance with Article 16(1) of that directive.
334    In accordance with Article 19 of Directive 2006/123, Member States may not impose on a recipient of a service requirements which restrict the use of a service supplied by a provider established in another Member State, in particular, under Article 19(a) of that directive, an obligation to obtain authorisation from or to make a declaration to their competent authorities.
335    In the first place, it is necessary to verify, pursuant to Article 3(1) of Directive 2006/123 and in the light of the case-law derived from the judgment of 3 December 2020, Star Taxi App (C‑62/19, EU:C:2020:980), whether the fact that Paragraph 6/A of the Law on the Protection of Children constitutes, as has been held in paragraphs 266 to 273 of the present judgment, a rule applicable to ‘information society services’ as defined in Article 2(a) of Directive 2000/31 is such as to exclude the application to that paragraph of that law of the requirements stemming from Directive 2006/123 and the requirement stemming from Article 56 TFEU, as Directive 2000/31 specifically governs the free movement of information society services.
336    In that regard, it must be pointed out that, as is apparent from those paragraphs of the present judgment, in view of the wide range of persons to whom Paragraph 6/A of the Law on the Protection of Children applies, including not only providers but also recipients of services used in connection with activities falling within the scope of that paragraph, it cannot be excluded, as was indicated, in essence, by the Advocate General in point 331 of her Opinion, that the prohibition on making available the content referred to in that paragraph applies in connection with the provision of services other than information society services within the meaning of Directive 2000/31.
337    Having regard to Article 4(1) of Directive 2006/123, according to which the concept of ‘service’ includes any self-employed economic activity, normally provided for remuneration, as referred to in Article 57 TFEU, such services could consist in basic child protection services in Hungary, such as daytime childcare activities.
338    It is true that Paragraph 6/A of the Law on the Protection of Children also covers public or private bodies which are to ensure the enforcement of the rights and interests of children as enshrined in law and the fulfilment of parental duties.
339    However, as the Commission argues, such services may also be provided in return for remuneration.
340    In addition to the case-law of the Court referred to in paragraphs 267 and 268 of the present judgment, it should be borne in mind, in that regard, that it is possible that a public establishment may carry on a number of activities, both economic and non-economic, provided that any risk of cross-subsidisation of its economic activities by means of public funds received for its non-economic activities is excluded (see, to that effect, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 51).
341    Such economic services, referred to in Paragraph 6/A of the Law on the Protection of Children, are thus included in the concept of ‘service’ within the meaning of Article 4(1) of Directive 2006/123.
342    In the second place, it is necessary to examine whether those services are excluded from the scope of Directive 2006/123 under Article 2(2)(j) thereof, according to which that directive does not apply to, inter alia, social services relating to childcare.
343    It is true that it is apparent from a reading of that provision in conjunction with recital 27 of that directive that only ‘social services’ which satisfy two cumulative conditions are included in that concept. While the first condition concerns the nature of the activities carried out, the second condition concerns the status of the service provider, which may be the State itself, a charity recognised as such by the State, or a private service provider mandated by the State (see, to that effect, judgment of 11 July 2013, Femarbel, C‑57/12, EU:C:2013:517, paragraphs 42 to 44).
344    In that regard, a private service provider is to be considered as being mandated by the State if it has an ‘obligation’ to provide the social services which have been entrusted to it (judgment of 11 July 2013, Femarbel, C‑57/12, EU:C:2013:517, paragraph 46).
345    However, Hungary has not demonstrated that all the services and specific measures falling within the scope of the Law on the Protection of Children are provided by the State, by a charity recognised as such by the State or by a private service provider mandated by the State.
346    In the third place, it is necessary to examine whether the prohibition laid down in Paragraph 6/A of the Law on the Protection of Children is to be regarded as a requirement which is such as to restrict the free movement of services for the purposes of Directive 2006/123.
347    The concept of ‘requirement’ is defined in Article 4(7) of that directive, according to which that concept encompasses any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States or resulting from case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy.
348    That definition must be read in the light of recital 9 of Directive 2006/123, according to which that directive applies only to requirements which affect the access to, or the exercise of, a service activity and therefore does not apply to requirements which do not specifically regulate or specifically affect that service activity but which have to be respected by providers of such services in the same way as by individuals acting in their private capacity (see, to that effect, judgments of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 123, and of 22 September 2020, Cali Apartments, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 40).
349    Furthermore, according to settled case-law, all requirements that prohibit, impede or render less attractive the exercise of the freedom to provide services must be regarded as restrictions on that freedom (see, to that effect, judgment of 19 June 2025, Commission v Poland (Advertising for pharmacies), C‑200/24, EU:C:2025:459, paragraph 71 and the case-law cited).
350    The concept of ‘restriction’ within the meaning of Directive 2006/123 covers requirements imposed by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States (judgment of 19 June 2025, Commission v Poland (Advertising for pharmacies), C‑200/24, EU:C:2025:459, paragraph 72 and the case-law cited), by prohibiting, impeding or rendering less attractive the activities of a provider of services established in another Member State where that person lawfully provides similar services (judgment of 12 September 2013, Konstantinides, C‑475/11, EU:C:2013:542, paragraph 44 and the case-law cited).
351    Having regard to the case-law referred to in paragraphs 348 to 350 of the present judgment, it must be found that Paragraph 6/A of the Law on the Protection of Children not only reduces the possibility for service providers established in another Member State to provide services containing content covered by that provision to their potential clientele residing in Hungary, but also renders the receipt of those services less attractive for the recipients of services falling within the scope of that paragraph.
352    It follows that the prohibition set out in that provision constitutes a requirement which is such as to restrict the free movement of services for the purposes of Directive 2006/123.
(2)    Paragraph 8(1a) of the Law on Commercial Advertising
(i)    Arguments of the parties
353    By the second part of the third plea in law, the Commission argues that Hungary has failed to fulfil its obligations under Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU.
354    It notes that Paragraph 8(1a) of the Law on Commercial Advertising prohibits making available to persons under the age of 18 advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, and thereby restricts the freedom to provide cross-border advertising services.
355    In the first place, the Commission submits that that provision affects not only offline advertising services, such as the designing and publishing of posters, advertisements in the press or leaflets, but also all commercial activities in general which make use of advertising to promote goods and services.
356    Paragraph 8(1a) of the Law on Commercial Advertising thus simultaneously covers advertising by electronic means and physical advertising, as well as advertising by other means, such as by telephone.
357    Accordingly, the services referred to in that provision fall within the scope of Directive 2006/123 and Article 56 TFEU. In that regard, neither Article 3(1) of that directive nor the exception set out in Article 2(2)(c) and (g) thereof applies in the present case.
358    In the second place, regarding the existence of a restriction on the free movement of services, the Commission notes, first, that, while Paragraph 8(1a) of the Law on Commercial Advertising does not lay down a general prohibition on the broadcasting of advertising with sensitive content, that provision results in a prohibition on any advertising which refers or alludes to content that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
359    It is apparent from the judgment of 12 September 2013, Konstantinides (C‑475/11, EU:C:2013:542, paragraph 56), that a national rule prohibiting advertising having a certain content constitutes an obstacle to the freedom to provide services.
360    In that regard, potential restrictive effects are sufficient to establish the existence of a restriction, as this also includes measures liable to discourage or render less attractive the cross-border provision of services, as can be seen from the judgments of 17 July 2008, Corporación Dermoestética (C‑500/06, EU:C:2008:421, paragraphs 33 and 34), and of 19 December 2012, Commission v Belgium (C‑577/10, EU:C:2012:814, paragraph 38).
361    Second, Paragraph 8(1a) of the Law on Commercial Advertising also affects cross-border services which do not, in themselves, constitute advertising, but which are accompanied by advertising that portrays or promotes homosexuality, gender reassignment or deviation from the self-identity corresponding to the sex assigned at birth, that is to say, ‘accompanying advertising’.
362    Hungary contends that the restriction of offline advertising services under Paragraph 8(1a) of the Law on Commercial Advertising does not, in itself, permit the conclusion that the exercise of a commercial activity will be hindered or will become less attractive.
363    That Member State specifies that that provision is not intended to establish a general prohibition, but to limit the accessibility of advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality for the targeted public of persons under the age of 18. Promotion of such content means that that type of conduct is presented in a more favourable or advantageous way than the sexual norms generally accepted in the society concerned. That would be the case, for example, if the advertising were expressly to encourage minors to become homosexual or to undergo gender reassignment.
364    That provision thus merely lays down a prohibition on certain content for advertising addressed to minors, but does not involve a prohibition on commissioning, purchasing or offering cross-border advertising services that promote or portray deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
(ii) Findings of the Court
365    In the first place, it should be borne in mind that it follows from paragraph 291 of the present judgment that the advertising services referred to in Paragraph 8(1a) of the Law on Commercial Advertising are liable to constitute ‘information society services’ within the meaning of Article 2(a) of Directive 2000/31, read in conjunction with Article 1(1)(b) of Directive 2015/1535, with such services thus falling within the scope of Directive 2000/31.
366    As was emphasised by the Advocate General in point 333 of her Opinion, it cannot be excluded, in view of the particularly broad scope of the prohibition set out in Paragraph 8(1a) of that law, covering ‘advertising … that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality’, that advertising carried out other than via an audiovisual media service or by electronic means, for example via posters, as well as other forms of advertising, such as accompanying advertising, may be covered by that provision.
367    In accordance with Article 3(1) of Directive 2006/123, the advertising services referred to in Paragraph 8(1a) of the Law on Commercial Advertising are thus capable of being included in the concept of ‘service’ within the meaning of Article 4(1) of that directive, in so far as those services are not governed by a provision of another act of EU law governing specific aspects of access to or exercise of a service activity in specific sectors and conflicting with that directive.
368    In the second place, it is necessary to specify that advertising services which are not audiovisual or carried out by electronic means, as referred to in paragraph 366 of the present judgment, cannot be covered by the exceptions provided for in Article 2(2)(c) and (g) of Directive 2006/123, which relate to electronic communications services and networks, and audiovisual services, respectively.
369    In the third place, it is necessary to examine whether the prohibition laid down in Paragraph 8(1a) of the Law on Commercial Advertising is to be regarded as constituting a requirement which is such as to restrict the free movement of services for the purposes of Directive 2006/123 and, by extension, as entailing a restriction on that free movement for the purposes of Article 56 TFEU.
370    It should be borne in mind that it follows from the case-law of the Court that national legislation which imposes a general and absolute prohibition of any advertising for a certain activity is liable to restrict the possibility, for the persons carrying on that activity, of making themselves known to their potential clientele and of promoting the services which they offer to their clientele. Consequently, that national legislation must be regarded as a restriction on the freedom to provide services (judgment of 19 June 2025, Commission v Poland (Advertising for pharmacies), C‑200/24, EU:C:2025:459, paragraph 73 and the case-law cited).
371    In addition, according to that case-law, even if national legislation does not lay down such a general and absolute prohibition of advertising or a particular form of advertising, such legislation is liable to constitute an obstacle to the relevant freedom to provide advertising services (see, to that effect, judgment of 12 September 2013, Konstantinides, C-475/11, EU:C:2013:542, paragraph 56 and the case-law cited).
372    Contrary to Hungary’s assertions, Paragraph 8(1a) of the Law on Commercial Advertising is thus liable to limit the cross-border commissioning, purchasing or provision of advertising services.
373    Having regard to the case-law referred to in paragraphs 370 and 371 of the present judgment, the prohibition set out in that provision constitutes a requirement restricting the freedom to provide services for the purposes of Directive 2006/123, in so far as that provision limits the possibility, for persons providing advertising services, to promote those services in Hungary where the advertising which they offer, which includes the content referred to in that paragraph, could, depending on the circumstances, be seen or heard by a minor.
374    Hungary’s argument that advertising does not fall within a harmonised field, meaning that the Member States have a broad discretion to determine the requirements involved in the protection of minors, also cannot succeed.
375    Indeed, it follows, in essence, from recital 7 of Directive 2006/123 that that directive provides for targeted harmonisation in order to establish a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity and its system of regulation.
376    Accordingly, since Directive 2006/123 establishes, as is apparent from Article 1(1) thereof, general provisions intended to eliminate restrictions on the free movement of services between Member States in order to create a free and competitive internal market for services, the Member States are required, as the Commission remarks, to exercise their discretion within the limits set by that directive.
(3)    Paragraph 9(12) of the Law on Public Education
(i)    Arguments of the parties
377    By the third part of the third plea in law, the Commission argues that Hungary has failed to fulfil its obligations under Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU.
378    It notes that Paragraph 9(12) of the Law on Public Education provides that activities organised for students and concerning sexual culture, sexual life, sexual orientation, and sexual development must not have the aim of promoting deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
379    In the first place, the Commission is of the view that the educational services concerned fall within the scope of Directive 2006/123 and Article 56 TFEU.
380    In that regard, that institution indicates that services provided by private bodies are covered by that directive and that article, as are educational services provided by service providers established in other Member States. Similarly, public education institutions whose main activities do not fall within the scope of that directive may carry on complementary activities, generally provided for remuneration, such as the organising of conferences.
381    However, it is not Hungarian public education which is at issue in the present case, but rather economic activities covered by the rules of the EU internal market, in particular in the field of education.
382    In so far as Paragraph 9(12) of the Law on Public Education extends to activities concerning ‘sexual culture, sexual life, sexual orientation, and sexual development’ which are organised in public education institutions, that provision affects private external service providers connected with public institutions, such as third parties which organise training courses, conferences or artistic performances. The scope of that provision is thus not limited to teaching, but also covers other activities organised in schools.
383    When those activities are carried out, civil society organisations in the European Union are prepared to offer, often for remuneration, services in Hungary or to Hungary that are, essentially, prohibited under that provision.
384    In the second place, Paragraph 9(12) of the Law on Public Education is disproportionate, given that it is not suitable for securing the attainment of the objective pursued by that law, that is to say, the objective of establishing a public education system favouring the harmonious mental, physical and intellectual development of children and young people, as referred to in Paragraph 1(1) thereof. Paragraph 9(12) of that law does not promote the development of all students, but engages in discrimination against a part of the Hungarian and European population. Therefore, that provision, by establishing such a general prohibition, goes beyond what is necessary.
385    Hungary contends, in the first place, that Paragraph 9(12) of the Law on Public Education covers only public education activities, including school activities and other activities offered in connection with education, with the result that that provision does not fall within the scope of Article 56 TFEU or Directive 2006/123.
386    Furthermore, educational and cultural services provided by private organisations also do not fall within the scope of the Law on Public Education, as Paragraph 9(12) of that law does not apply to those services.
387    By contrast, that provision does fall within the scope of Article 165(1) TFEU, given that it regulates the content of teaching, which, however, falls within the competence of the Member States. In that regard, the fact that a school provides teaching in several languages has no bearing on whether that school belongs to the public education system.
388    In the second place, Paragraph 9(12) of the Law on Public Education does not prohibit the portrayal of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, but the promotion of such content. In addition, the Commission is incorrect to argue that certain organisations are not authorised to provide services to schools in Hungary. Services portraying deviation of that sort can indeed be provided by persons other than employees of the educational establishment concerned, provided that those persons are registered by the body designated by law.
(ii) Findings of the Court
389    In the first place, it is necessary to verify whether the public educational services referred to in Paragraph 9(12) of the Law on Public Education are included in the concept of ‘service’ within the meaning of Article 4(1) of Directive 2006/123 and, if so, whether the provisions of that directive conflict with a provision of another act of EU law governing specific aspects of access to or exercise of that service activity for the purposes of Article 3(1) thereof.
390    In that regard, it is true that it follows from the case-law of the Court that the essential characteristic of that concept of ‘service’, namely remuneration constituting financial consideration for the service in question, is absent where teaching is provided under the public education system, as the State is not engaging in gainful activity in that regard (see, to that effect, judgments of 27 September 1988, Humbel and Edel, 263/86, EU:C:1988:451, paragraphs 17 and 18, and of 7 December 1993, Wirth, C‑109/92, EU:C:1993:916, paragraph 15 and the case-law cited).
391    By contrast, it is apparent from the case-law of the Court that courses offered by educational establishments essentially financed by private funds, in particular by students and their parents, constitute ‘services’ for the purposes of EU law, as the aim of those establishments is to offer a service for remuneration (judgment of 20 May 2010, Zanotti, C‑56/09, EU:C:2010:288, paragraph 32 and the case-law cited).
392    The educational activities of a congregation that are not financed by the Member State concerned and that form part of early-years teaching, extracurricular activities and post-compulsory education are thus included in the concept of ‘service’ within the meaning of Article 4(1) of Directive 2006/123 and Article 56 TFEU (see, to that effect and by analogy, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 57).
393    In the present case, it must be pointed out, as is argued by the Commission, that Paragraph 9(12) of the Law on Public Education covers a wide range of educational services, given that it provides, in very general terms, that activities organised for students and concerning sexual culture, sexual life, sexual orientation, and sexual development must not have the aim of promoting deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
394    Accordingly, as was noted by the Advocate General in point 337 of her Opinion, that provision appears to be applicable to educational services, that is to say, in this instance, services educating or informing minors about sexual culture, sexual life, sexual orientation, and sexual development which, when provided for remuneration outside the public education system, or within that system but by external service providers, are included in the concept of ‘service’ within the meaning of Article 4(1) of Directive 2006/123.
395    Hungary’s argument that Paragraph 9(12) of the Law on Public Education falls within the scope of Article 165(1) TFEU, as that paragraph regulates the content of teaching, is irrelevant in that regard.
396    As is apparent from the case-law referred to in paragraph 272 of the present judgment, while it is true that the Member States are competent, under Article 165(1) TFEU, as regards the content of teaching and the organisation of their respective education systems, they must exercise that competence in line with EU law and, notably, with the provisions of the FEU Treaty on the freedom to provide services, in particular Article 56 TFEU.
397    In the second place, it should be indicated that, in so far as those services may also be provided other than via an audiovisual media service or by electronic means, Article 3(1) of Directive 2006/123 does not apply.
398    In the third place, those educational services cannot be covered by the exception provided for in Article 2(2)(j) of Directive 2006/123, according to which that directive does not apply to, inter alia, ‘social services’ relating to childcare.
399    Educational services usually provided to students, such as those referred to in Paragraph 9(12) of the Law on Public Education, are not included in that concept of ‘social services’ as that concept covers activities which are essential in order to guarantee the fundamental right to human dignity by avoiding the risk of marginalisation of the persons who are the recipients thereof and which constitute, to that end, a manifestation of the principles of social cohesion and solidarity (judgments of 11 July 2013, Femarbel, C‑57/12, EU:C:2013:517, paragraph 43, and of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C‑417/23, EU:C:2025:1017, paragraph 64).
400    In the fourth place, that provision constitutes a requirement liable to restrict the free movement of services guaranteed by Articles 16 and 19 of Directive 2006/123 where those services, which concern activities organised for students and concerning sexual culture, sexual life, sexual orientation, and sexual development, are provided for remuneration outside the public education system, or within that system but by external service providers.
401    Having regard to the case-law referred to in paragraph 349 of the present judgment, Paragraph 9(12) of the Law on Public Education must thus be regarded as rendering the exercise of that freedom less attractive.
(b)    Whether the restrictions may be justified under Articles 16 and 19 of Directive 2006/123, as well as Article 56 TFEU
(1)    Arguments of the parties
402    The Commission recalls that, according to the case-law of the Court, national restrictive measures must be justified by overriding reasons based on the general interest, must be suitable for securing the attainment of the objective which they pursue, and must not go beyond what is necessary in order to attain that objective.
403    However, neither Paragraph 6/A of the Law on the Protection of Children, nor Paragraph 8(1a) of the Law on Commercial Advertising can be regarded as justified and proportionate, any more than Paragraph 9(12) of the Law on Public Education.
404    It is not possible to rely on public policy, public health, public security, or the protection of the environment in order to justify those restrictions, as Hungary has not demonstrated the existence of a genuine and sufficiently serious threat affecting the fundamental interest of society relied on, namely the protection of minors.
405    Accordingly, the provisions referred to in paragraph 403 of the present judgment are not in line with the principles of necessity and proportionality set out in Article 16 of Directive 2006/123, which also apply to the requirements referred to in Article 19 of that directive. They are also in breach of Article 56 TFEU.
406    Hungary maintains that those provisions are suitable for attaining the public interest objective represented by the protection of the right of minors to healthy physical, mental, emotional and moral development, given that the tendency of minors to be influenced by harmful content, not having a critical perspective, is much greater than the tendency of adults to be so influenced. In addition, those provisions do not go beyond what is necessary in order to attain the objective of protecting children.
407    In particular, Paragraph 8(1a) of the Law on Commercial Advertising provides that advertising which includes the content covered by that provision may continue to be broadcast in places not frequented by children or in publications to which children do not have access, with the result that the conditions recalled, in essence, in the judgment of 17 July 2008, Corporación Dermoestética (C‑500/06, EU:C:2008:421, paragraph 35), are satisfied.
(2)    Findings of the Court
408    According to Article 16(3) of Directive 2006/123, the Member State to which the provider moves has the option of imposing requirements with regard to the provision of a service activity, where they are justified for, inter alia, reasons of public policy and public security, in accordance with Article 16(1) of that directive.
409    In accordance with point (c) of the third subparagraph of Article 16(1) of Directive 2006/123, those requirements must respect the principle of proportionality, which means that they must be suitable for attaining the objective pursued and that they must not go beyond what is necessary to attain that objective.
410    Furthermore, it is for the Member State concerned to demonstrate that those conditions are satisfied (see, to that effect, judgment of 6 October 2020, Commission v Hungary (Higher education), C‑66/18, EU:C:2020:792, paragraph 179 and the case-law cited).
411    In the present case, Hungary relies, in that regard, on the healthy physical, mental, emotional and moral development of minors.
412    However, that objective cannot justify the requirements and restrictions stated in paragraphs 352, 373 and 400 of the present judgment.
413    Indeed, in accordance with the case-law referred to in paragraphs 129 to 133 of the present judgment, a Member State cannot rely on an interpretation of Article 16(3) of Directive 2006/123 that would be in breach of the prohibition, enshrined in Article 21(1) of the Charter, of any discrimination based on sex or sexual orientation, that prohibition being mandatory as a general principle of EU law.
414    As has already been stated in paragraph 306 of the present judgment, both Paragraph 6/A of the Law on the Protection of Children and Paragraph 8(1a) of the Law on Commercial Advertising engage in discrimination directly based on sex and sexual orientation, which is incompatible with that prohibition. Those provisions thus do not respect the essence of Article 21(1) of the Charter. Moreover, for reasons analogous to those to which reference is made in paragraph 306 of the present judgment, it must be found that Paragraph 9(12) of the Law on Public Education engages in discrimination directly based on sex and sexual orientation, which is also incompatible with Article 21(1) of the Charter.
415    Accordingly, it must be held that the respective requirements established by Paragraph 6/A of the Law on the Protection of Children, by Paragraph 8(1a) of the Law on Commercial Advertising, and by Paragraph 9(12) of the Law on Public Education cannot be justified in view of Article 16(3) of Directive 2006/123, interpreted in the light of Article 21(1) of the Charter.
(c)    Conclusion
416    Having regard to all the foregoing considerations, it must be concluded that the third plea in law is well founded. That conclusion cannot, in view of what is set out in paragraphs 326 to 352, 365 to 376 and 389 to 401 of the present judgment, be called into question by Hungary’s assertion that the third plea in law does not meet the requirements regarding the taking of evidence applicable to actions for a finding that there has been a failure to fulfil obligations.
4.      Fifth plea in law, alleging infringements of Articles 1, 7, 11 and 21 of the Charter
417    By its fifth plea in law, which must be examined in the fourth place, the Commission argues that Hungary has failed to fulfil its obligations under Articles 1, 7, 11 and 21 of the Charter.
418    It notes that Paragraph 6/A of the Law on the Protection of Children, Paragraph 8(1a) of the Law on Commercial Advertising, Paragraph 9(1) and (6) and Paragraph 32(4a) of the Law on Media Services, as well as Paragraph 9(12) of the Law on Public Education (together, ‘the provisions at issue’) are in breach of Articles 1, 7, 11 and 21 of the Charter inasmuch as they restrict access, for persons under the age of 18, to media content or commercial communications which promote or portray deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
(a)    Whether the Charter is applicable to Paragraph 6/A of the Law on the Protection of Children and Paragraph 9(12) of the Law on Public Education
419    It is necessary to set aside at the outset Hungary’s argument based on the case-law derived from the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 34), according to which, in so far as the definition of the content of public education falls within the competence of the Member States, the Law on the Protection of Children and the Law on Public Education do not fall within the scope of EU law, with the result that those laws are not subject to compliance with the Charter.
420    In that regard, it should be borne in mind that the scope of the Charter, so far as action by the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing Union law. It is sufficient to state in this regard that it follows from, inter alia, paragraphs 281, 352 and 400 of the present judgment that Paragraph 6/A of the Law on the Protection of Children, on the one hand, and Paragraph 9(12) of the Law on Public Education, on the other, constitute requirements which are such as to restrict the free movement of services either for the purposes of Article 3(2) of Directive 2000/31 or for the purposes of Articles 16 and 19 of Directive 2006/123.
421    According to settled case-law, such measures must comply with the Charter, which requires, in particular, that they do not impose any limitations on the rights and freedoms enshrined therein or, if they do, that those limitations are justified in the light of the requirements set out in Article 52(1) thereof (judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 103 and the case-law cited).
(b)    Whether there has been a failure to fulfil the obligations arising under Article 21 of the Charter
422    It is necessary to uphold at the outset the fifth plea in law inasmuch as it concerns a failure, by Hungary, to fulfil its obligations under Article 21(1) of the Charter. Such a failure to fulfil obligations necessarily follows from paragraphs 135 to 162, 196, 203, 230, 306, 414 and 415 of the present judgment, in which it is stated, in essence, that each of the provisions of Hungarian legislation concerned by the first three pleas in law is in breach of the essence of that provision.
(c)    Whether there are limitations on the rights and freedoms guaranteed under Articles 7 and 11 of the Charter
423    It is necessary to begin by assessing whether, as the Commission maintains, the provisions at issue limit the rights and freedoms guaranteed under Articles 7 and 11 of the Charter and, if so, whether, as Hungary maintains, those limitations may be justified in view of the requirements set out in Article 52(1) thereof.
(1)    Whether there is a limitation of the right to respect for private and family life guaranteed under Article 7 of the Charter
(i)    Arguments of the parties
424    The Commission submits that the provisions at issue, which restrict, so far as persons under the age of 18 are concerned, content or advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, are in breach of the right of non-cisgender or non-heterosexual persons to respect for private and family life, enshrined in Article 7 of the Charter.
425    Under Article 52(3) of the Charter, the right to respect for private and family life guaranteed by Article 7 thereof must be interpreted in line with the case-law of the European Court of Human Rights relating to Article 8 ECHR.
426    According to that case-law, the concept of ‘private life’, as referred to in Article 8 ECHR, which cannot be given an exhaustive definition, should be interpreted broadly as covering a person’s physical and moral integrity, as well as the right to ‘personal development’ or self-determination.
427    Furthermore, again according to that case-law, gender identity or identification, names, sexual orientation and sexual life also fall within the personal sphere protected by Article 8 ECHR, which thus essentially has the object of protecting the individual against arbitrary interference by the public authorities.
428    In order to determine whether remarks concerning a specific group meet the threshold for applying Article 8 ECHR, the European Court of Human Rights takes into account, first, the characteristics of the persons of which that group is composed and, second, the specific content of the negative remarks concerning that group, as well as the form and the scope of the remarks and the general context in which they were made.
429    Having regard to those criteria, the Commission is of the view that the provisions at issue and the discontinuation of the representation of non-cisgender or non-heterosexual persons or non-cisgendered or non-heterosexual lives resulting from the application of those provisions may in themselves have a stigmatising effect. That stigmatisation is increased by the fact that a legal act provides that children must be protected from portrayals of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality. It is intensified by the context of the amending law, which is such as to create a link between the dangers posed by paedophilia, on the one hand, and the risk posed by the mere existence of non-cisgender or non-heterosexual persons, on the other, the implied message being that such persons are just as dangerous as paedophiles.
430    Those provisions, which directly discriminate against non-cisgender or non-heterosexual persons, entail the marginalisation and stigmatisation of those persons, in breach of the right to respect for private and family life enshrined in Article 7 of the Charter.
431    Hungary contends that the provisions at issue cannot be interpreted as being in breach of the right of non-cisgender or non-heterosexual persons to respect for private and family life. Those provisions have neither a discriminatory nor a stigmatising objective and cannot be interpreted as meaning that such persons must be regarded as harmful or as representing a danger to society.
432    That Member State acknowledges that, admittedly, the concept of ‘private life’, as referred to in Article 7 of the Charter, is broad and includes the right to personal development and self-determination.
433    Nevertheless, the Commission has not demonstrated that the provisions at issue are in breach of the right of non-cisgender or non-heterosexual persons to respect for private and family life, as referred to in that article, as those provisions concern the protection of minors in specific situations, without having an impact at a societal level.
(ii) Findings of the Court
434    As a preliminary point, it should be borne in mind that, according to Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications.
435    The Court has had occasion to emphasise that that provision protects a person’s gender identity and sexual orientation as a constituent element and one of the most intimate aspects of that person’s private life. Thus, that provision encompasses the right of each person to establish details of his or her identity as an individual human being, which includes the right of transgender persons to personal development and physical and moral integrity, as well as to respect for, and recognition of, their sexual orientation and gender identity (see, to that effect, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 64 and the case-law cited).
436    To that end, Article 7 of the Charter imposes positive obligations on Member States, in addition to negative obligations to protect non-cisgender persons – including transgender persons – or non-heterosexual persons against arbitrary interference by public authorities, which also entails the establishment of effective and accessible procedures guaranteeing effective respect for the right of those persons to gender identity. Furthermore, in view of the particular importance of that right, Member States have only limited discretion in this area (see, to that effect, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 65 and the case-law cited).
437    In addition, in accordance with Article 52(3) of the Charter, which is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR without adversely affecting the autonomy of Union law, and in particular without preventing that law from providing more extensive protection, the Court is to take into account, when interpreting the rights guaranteed by Article 7 of the Charter, inter alia, the corresponding rights guaranteed by Article 8(1) ECHR, as interpreted by the European Court of Human Rights, as a minimum threshold of protection (see, to that effect, judgments of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 26 and the case-law cited, and of 25 November 2025, Wojewoda Mazowiecki, C‑713/23, EU:C:2025:917, paragraph 64 and the case-law cited).
438    In that regard, it is apparent from the case-law of the European Court of Human Rights that ‘private life’, as referred to in Article 8(1) ECHR, is a broad concept, not susceptible to exhaustive definition. It covers the physical and moral integrity of the person and sometimes encompasses aspects of an individual’s physical and social identity, including the right to establish and develop relationships with other human beings, the right to ‘personal development’ or the right to self-determination as such. Furthermore, gender identity, names, sexual orientation and sexual life also fall within the personal sphere protected by Article 8(1) ECHR (see, to that effect, ECtHR, 23 September 2010, Schüth v. Germany, CE:ECHR:2010:0923JUD000162003, § 53 and the case-law cited).
439    Article 8 ECHR also includes and guarantees the right to a ‘private social life’, that is, the possibility for the individual to develop his or her social identity (see, to that effect, ECtHR, 5 September 2017, Bărbulescu v. Romania, CE:ECHR:2017:0905JUD006149608, § 70).
440    In view of that case-law of the European Court of Human Rights relating to Article 8 ECHR, the right to respect for private and family life enshrined in Article 7 of the Charter is thus of specific relevance with regard to the protection of a person’s gender identity and sexual orientation in both the personal and the social sphere (see, to that effect, judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 49 and the case-law cited).
441    In the present case, the provisions at issue, inasmuch as they restrict minors’ access to content or commercial communications that promote or portray deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, fall within the scope of the concept of ‘private life’, as referred to in Article 7 of the Charter.
442    Those provisions concern the development of a person’s individual gender identity as a constituent element and one of the most intimate aspects of that person’s private life for the purposes of the case-law referred to in paragraph 435 of the present judgment.
443    Having regard to the fact that the provisions at issue restrict minors’ access only in respect of content or commercial communications promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, it must be held that such a restriction is offensive and stigmatising with regard to the members of society that are concerned by those provisions.
444    First, that offensive and stigmatising nature results from the fact that those members of society, namely non-cisgender persons – including transgender persons – or non-heterosexual persons, are regarded as detrimental to the physical, mental and moral development of minors solely on the basis of their gender identity or sexual orientation.
445    Second, the restricting, in accordance with the provisions at issue, of content or commercial communications promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality not only marginalises non-cisgender persons – including transgender persons – or non-heterosexual persons, but also reinforces, in the public sphere, the stigmatising way in which the gender identity or sexual orientation of such persons is perceived.
446    Third, as is, in essence, argued by the Commission, the fact that a legislative act, such as the amending law, states, according to its title, that it is laying down ‘stricter measures in respect of persons convicted of paedophilia’, while providing that minors must be protected from portrayals of deviation from the self-identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality, is also such as to amplify the offensive and stigmatising effect of the provisions at issue, or even to encourage the development of hateful conduct towards non-cisgender or non-heterosexual persons, given that such persons could thereby be associated with persons convicted of paedophilia.
447    Fourth, although the Member States have a positive obligation to guarantee effective respect for the right of all persons to develop a gender identity, as can be seen from the case-law referred to in paragraph 436 of the present judgment, those provisions reveal, as has already been stated, in essence, in paragraph 136 of the present judgment, a preference for certain categories of personal identities, gender identities, relationships, or families, over others, contributing to the stigmatisation of identities, relationships or families which are not included in those categories.
448    As a result, the prohibition, laid down by those provisions, on making available to minors content or advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, constitutes a particularly serious limitation of the right of non-cisgender persons – including transgender persons – or non-heterosexual persons to respect for private and family life, as enshrined in Article 7 of the Charter.
(2)    Whether there is a limitation of the freedom of expression guaranteed under Article 11 of the Charter
(i)    Arguments of the parties
449    The Commission submits that the provisions at issue, which restrict, so far as persons under the age of 18 are concerned, access to content or advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, are in breach of the right to freedom of expression enshrined in Article 11 of the Charter. That breach is not limited to non-cisgender or non-heterosexual persons, given that it restricts the right of every citizen, regardless of his or her sex or sexual orientation, to communicate or receive the content in question.
450    More specifically, that institution argues that those provisions restrict the right of media service providers, providers of advertising services, providers that use advertising in connection with their commercial activities, as well as providers of educational services, from disseminating certain content on the basis of their objectives, beliefs or personal choices.
451    Furthermore, those provisions have a negative effect on the capacity of persons, including non-cisgender or non-heterosexual persons, to express or receive information in the same way as if they wished to communicate on the subject of relations or issues concerning cisgender or heterosexual persons.
452    Those provisions have been worded in broad and vague terms, thereby covering a wide range of content and leaving a broad discretion to decide what type of content constitutes promotion of a particular sexual orientation.
453    Hungary maintains that the provisions at issue do not directly affect the right of non-cisgender or non-heterosexual persons to freedom of expression, as those provisions are not addressed to those persons and restrict only the portrayal or promotion of the content concerned in certain specific areas of minors’ lives.
454    It should be emphasised, in that context, that minors are more vulnerable than adults, in so far as their personality is still undeveloped, and that, because of their age, they are in need of special protection with regard to the promotion or portrayal of some sensitive content. Those provisions are thus intended to limit receipt, by a minor, of information from sources independent from, and entirely beyond the control of, that minor’s parents.
455    Those provisions cannot therefore be interpreted as restricting the right of every citizen to impart and receive the content in question, in so far as the restriction on communication concerns only specific situations and is aimed only at minors.
456    Hungary specifies that the freedom of expression is not an absolute fundamental right, as it is subject to numerous limitations, in particular where the protection of the rights of others is involved, that is to say, in the present case, minors, as well as their parents or guardians, who have the right to be able to decide for themselves as to those minors’ education.
(ii) Findings of the Court
457    As a preliminary point, it should be borne in mind that, according to Article 11(1) of the Charter, everyone has the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
458    Article 11(2) of the Charter provides that the freedom and pluralism of the media is to be respected.
459    As can be seen from paragraph 437 of the present judgment, in accordance with Article 52(3) of the Charter, the Court is to take into account, when interpreting the rights guaranteed by Article 11 of the Charter, inter alia, the corresponding rights guaranteed by Article 10 ECHR, as interpreted in the case-law of the European Court of Human Rights, as a minimum threshold of protection.
460    Freedom of expression is one of the basic conditions for progress in a democratic society and for each individual’s self-fulfilment; it protects not only ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see, to that effect, judgment of 12 January 2023, Migracijos departamentas (Reasons for persecution on the ground of political opinion), C‑280/21, EU:C:2023:13, paragraph 30 and the case-law cited).
461    In the light of the case-law of the European Court of Human Rights, which is relevant to the interpretation of Article 11 of the Charter, it is necessary to use a broad interpretation of the concepts of ‘information’ and ‘ideas’ as referred to in that provision (see, to that effect, judgment of 12 January 2023, Migracijos departamentas (Reasons for persecution on the ground of political opinion), C‑280/21, EU:C:2023:13, paragraph 32).
462    According to the case-law of the European Court of Human Rights, Article 10 ECHR guarantees freedom of expression and information for everyone and applies not only to the content of information, but also to the means of its dissemination, for any restriction imposed on the latter necessarily interferes with the freedom to receive and impart information (judgment of 26 April 2022, Poland v Parliament and Council, C‑401/19, EU:C:2022:297, paragraph 46 and the case-law cited).
463    That freedom applies, in particular, to the dissemination by a business of commercial information, including in the form of advertising (judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 81 and the case-law cited).
464    As a complement to the fundamental freedom to receive information, guaranteed by Article 11(1) of the Charter, Article 11(2) thereof seeks to promote pluralism of the media in the production and programming of information in the European Union (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 51).
465    It thus follows from the case-law that a national measure, inasmuch as it limits the possibilities to disseminate certain content or advertising that
promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, or prohibits accessing such content or advertising, constitutes an encroachment upon
the freedom of expression, enshrined in Article 11 of the Charter, of the providers concerned (see, to that effect, judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 82 and the case-law cited).
466    In the present case, it must be found, in the first place, that the provisions at issue restrict the right of media service providers, providers of advertising services, providers that use advertising in connection with their commercial activities, as well as providers of educational services, from disseminating content or advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality. Those provisions thus limit the right to impart ‘information’ guaranteed under Article 11 of the Charter and, by extension, pluralism of the media in the production and programming of information in the European Union.
467    In the second place, those provisions also have the effect of restricting the right of everyone, guaranteed under Article 11 of the Charter, to receive information promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.
468    Accordingly, the provisions at issue limit the freedom of expression and information not only with regard to minors, but also with regard to members of the general public wishing to receive such content, as well as with regard to service providers disseminating that content in the form of advertising, communications of public interest or messages promoting awareness broadcast in the public sphere.
469    In the third place, in that context, Hungary’s line of argument that those provisions do not directly affect the right of non-cisgender and non-heterosexual persons to freedom of expression, as those provisions are not addressed to those persons, cannot succeed.
470    Indeed, Article 11 of the Charter applies, as is apparent from paragraphs 466 to 468 of the present judgment, to any prohibition on or limitation of the dissemination or receipt of the content covered by those provisions, and not only to the conditions under which non-cisgender persons – including transgender persons – or non-heterosexual persons may express themselves.
471    As a result, the prohibition, laid down by the provisions at issue, on making available to minors content or advertising that promotes or portrays deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality, constitutes particularly serious interference with the freedom of expression and information guaranteed by Article 11 of the Charter.
(d)    Whether limitations of the rights and freedoms guaranteed under Articles 7 and 11 of the Charter are justified
472    The Commission submits, for reasons which are, in essence, analogous to those set out in paragraphs 96 to 105 of the present judgment, that limitations of the rights and freedoms guaranteed under Articles 7 and 11 of the Charter cannot be considered to be justified or proportionate in view of Article 52(1) of the Charter. For its part, Hungary contends, for reasons which are, in essence, analogous to those set out in paragraphs 115 to 122 of the present judgment, that those limitations are necessary and proportionate in view of the objectives which they pursue, namely (i) the best interests of the child, which Article 24(2) of the Charter states must be pursued, and (ii) the protection of the right of parents to ensure the education of their children in conformity with their religious, philosophical and pedagogical convictions, as enshrined in Article 14(3) of the Charter.
473    In view of the findings made in paragraphs 135 to 162 of the present judgment, which can be transposed in full to the examination of the particularly serious interferences with the rights and freedoms guaranteed under Articles 7 and 11 of the Charter stemming from the provisions of the amending law at issue, it must be held that those interferences cannot be justified by the pursuit of those objectives.
(e)    Whether Article 1 of the Charter has been infringed
474    It remains for the Court, in connection with the examination of the fifth plea in law, to assess whether the provisions at issue also infringe Article 1 of the Charter.
(1)    Arguments of the parties
475    The Commission submits that the provisions at issue infringe Article 1 of the Charter, in so far as those provisions not only constitute discrimination based on sex and sexual orientation, but also make the promotion or portrayal of homosexuality, of deviation from the self-identity corresponding to the sex assigned at birth, or of gender reassignment subject to the same rules and restrictions as those which apply to the broadcasting to minors of paedophilia, violence and pornography.
476    Those provisions thus associate homosexuality, deviation from the self-identity corresponding to the sex assigned at birth, and gender reassignment with serious offences, including offences involving acts of cruelty.
477    The consequence of such a classification is that non-heterosexual persons, or persons whose sex or gender identity does not correspond to the sex assigned at birth, are considered the moral and legal ‘equivalent’ of persons constituting a fundamental threat to society.
478    Associating non-cisgender or non-heterosexual persons with paedophilia, violence and pornography in binding legal acts has the effect of rendering those persons ‘detestable’ to society or as deserving to be ostracised or banished therefrom.
479    In that regard, the violation of human dignity, as referred to in Article 1 of the Charter, is intensified by the context in which the provisions at issue were adopted. The Commission emphasises in that regard that those provisions were proposed and adopted by the bodies of a Member State and have the force of law, which intensifies their ostracising and stigmatising effect, in accordance with the case-law derived from the judgment of the European Court of Human Rights of 23 January 2023, Macatė v. Lithuania (CE:ECHR:2023:0123JUD006143519).
480    In addition, Hungary’s argument that the title of the amending law, namely ‘Law No LXXIX of 2021 laying down stricter measures in respect of persons convicted of paedophilia and amending certain laws adopted in the interests of the protection of children’, is merely a synthetic title in line with Hungarian legislative requirements, indicating the areas and legislative texts concerned by the amendments contained in that law, is a false objection. Indeed, the provisions of that law emphasise the regulation and restriction of content concerning non-cisgender or non-heterosexual persons and non-cisgendered or non-heterosexual ways of life.
481    In view of those considerations, the adoption of measures which discriminate against and stigmatise a person on the basis of one or more of the grounds listed in Article 21 of the Charter may be interpreted as constituting a violation of that person’s dignity.
482    Hungary denies, first, that the content covered by the provisions at issue is subject to the same restrictions as those which apply to the broadcasting of violence and pornography to minors. Indeed, such broadcasting does not fall within Category V, as referred to in Paragraph 9(6) of the Law on Media Services, but Category VI, in accordance with Paragraph 9(7) thereof.
483    Second, that Member State maintains, making reference to the argument based on the title of the amending law set out in paragraph 480 of the present judgment, that there is no basis for concluding that the content which is potentially harmful to minors, which is the subject of the provisions at issue, is reflective of a negative value judgement on the part of Hungary, a stigmatising intention or design, or a desire to violate human dignity.
484    In addition, regarding the judgment of the European Court of Human Rights of 23 January 2023, Macatė v. Lithuania (CE:ECHR:2023:0123JUD006143519), that Member State contends that no substantive conclusion can be drawn from that judgment as regards whether the provisions at issue are in line with the Charter, as those provisions do not prohibit making certain information available to minors generally, but only making such information available in specific contexts and for particular reasons. The scope of those provisions is thus much more restricted than the national rule at issue in that judgment.
(2)    Findings of the Court
485    According to Article 1 of the Charter, human dignity is inviolable. It must be respected and protected.
486    It is apparent from the Explanations relating to the Charter that the dignity of the human person, as referred to in that article, is not only a fundamental right in itself but constitutes the very basis of fundamental rights. In that regard, those explanations make reference to, inter alia, the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948, which enshrined human dignity in the preamble thereto, specifying that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. It follows from this, according to those explanations, that none of the rights laid down in the Charter may be used to harm the dignity of another person and that the dignity of the human person is part of the substance of the rights laid down therein. It must therefore be respected, even where a right is restricted.
487    In the present case, as is apparent from paragraphs 444 and 445 of the present judgment, it must be found that the result of the provisions at issue is the stigmatisation and marginalisation of non-cisgender persons – including transgender persons – or non-heterosexual persons, who constitute a minority group of persons, solely on the basis of their gender identity or their sexual orientation.
488    For the same reasons as those set out in paragraph 446 of the present judgment, it follows, in addition, from the title of the amending law, combined with the stigmatising and marginalising effect of the provisions at issue, that Hungary has, in a binding legal act, made an association between the fact of not being cisgender or not being heterosexual, on the one hand, and being convicted of paedophilia, on the other. Such an association, through its offensive and stigmatising effect in respect of non-cisgender persons – including transgender persons – or non-heterosexual persons – an association which is, moreover, such as to encourage the development of hateful conduct towards such persons – violates the human dignity of those persons, for the purposes of Article 1 of the Charter.
489    As is argued by the Commission, that association and that stigmatisation entail a group of persons forming an integral part of a society in which pluralism prevails being treated as a threat to that society meriting special legal treatment, which results in such persons’ social ‘invisibility’ being established, maintained, or reinforced, in breach of Article 1 of the Charter.
490    Those findings cannot be called into question by Hungary’s argument that the broadcasting of violence and pornography to minors, under Paragraph 9(6) of the Law on Media Services, does not fall under Category V, but under Category VI, in accordance with Paragraph 9(7) of that law.
491    In that regard, it is sufficient to point out that that distinction between broadcasting categories is without prejudice to the finding that the association between non-cisgender persons – including transgender persons – or non-heterosexual persons, on the one hand, and persons convicted of paedophilia, on the other, follows from the title of the amending law, combined with the stigmatising and marginalising effect of the provisions at issue.
492    As a result, the prohibition, laid down by the provisions at issue, on making available to minors content or advertising promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality violates the human dignity of non-cisgender or non-heterosexual persons, which is protected by Article 1 of the Charter.
(f)    Conclusion
493    Having regard to all the foregoing considerations, it must be concluded that the fifth plea in law is well founded. That conclusion cannot, in view of what is set out in paragraphs 434 to 448, 457 to 471, and 485 to 492 of the present judgment, be called into question by Hungary’s assertion that the fifth plea in law does not meet the requirements regarding the taking of evidence applicable to actions for a finding that there has been a failure to fulfil obligations.
B.      Sixth plea in law, alleging infringement of Article 2 TEU
1.      Arguments of the parties
494    By its sixth plea in law, which it is necessary to examine in the fifth place, the Commission argues that, by adopting the amending law, Hungary has failed to fulfil its obligations under Article 2 TEU, as the provisions of that law which are the subject of the first three pleas in law, as well as the fifth plea in law, are in breach of the values of respect for human dignity, equality and respect for human rights referred to in that article.
495    That law is the reflection and expression of a deliberate and coordinated policy intended to marginalise and exclude a specific social group which is an integral part of Hungarian and European society, namely non-cisgender or non-heterosexual persons; a policy which is in direct conflict with the founding values of the Union as referred to in Article 2 TEU, with the acts in breach of those values being particularly serious, numerous and flagrant.
496    Having regard to the scale of the infringement of EU law, in particular, the combined infringements of Articles 1, 7, 11 and 21 of the Charter, the Commission submits that those infringements reflect a clear intention to stigmatise persons who are part of that social group, which is not compatible with those values.
497    The Commission recalls that the Member States are required, by virtue of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure the application of and respect for EU law in their territory and to take, to that end, any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
498    Article 49 TEU, which provides for the possibility for any European State to apply to become a member of the Union, also specifies that the Union comprises States which have freely and voluntarily subscribed to the common values referred to in Article 2 TEU, which respect those values, and which are committed to promoting those values.
499    As those values define the very identity of the Union as a common legal order, the Commission recalls that, according to the case-law of the Court, the Union must therefore be able to defend those values, within the limits of its powers as laid down by the Treaties.
500    However, the procedure laid down in Article 7 TEU is not the only means of protecting those values.
501    The Court has thus found that, in addition to that procedure, numerous provisions of the Treaties, frequently implemented by acts of secondary legislation, grant the EU institutions the power to examine, determine the existence of, and, where appropriate, impose penalties for, breaches of those values committed in a Member State.
502    Moreover, that procedure differs from actions for a finding that there has been a failure to fulfil obligations inasmuch as, first, the requirements laid down by the relevant provisions of the EU Treaties do not coincide, as Article 7(2) TEU provides that, in order for that provision to apply, a Member State must have committed a ‘serious and persistent’ breach of the values referred to in Article 2 TEU. Second, Article 7 TEU permits the suspension of the rights deriving from the application of those Treaties, including voting rights in the Council, whereas that penalty cannot be imposed by the Court in a judgment finding that there has been a failure to fulfil obligations under Article 258 TFEU.
503    The Court must therefore have the power to ensure that Member States respect the values enshrined in Article 2 TEU. In the absence of any specific explicit provision to that effect, no restriction on the jurisdiction of the Court can be accepted.
504    The Commission is also of the view that Article 4(2) TEU cannot be relied upon in order to derogate from the application of Article 2 TEU. ‘National identities’ as referred to in Article 4(2) TEU do not constitute a general ground for derogation from the principles and fundamental rights applicable in the legal order of the Union.
505    That institution therefore argues, referring to the case-law of the Court, that a Member State cannot rely on Article 4(2) TEU unless it can demonstrate that its national identity is indeed undermined and that its rules are based on objective considerations, are duly justified and proportionate, and respect the fundamental rights guaranteed by the Charter and the general principles of EU law.
506    The Commission adds that, by indicating that minors must be protected against the portrayal and promotion of non-cisgender or non-heterosexual persons as well as their way of life, the amending law starts from the premiss that such content is harmful and constitutes, by its nature and by its existence, a danger to society. The reliance on the precautionary principle is reflective of the approach that gender diversity is equivalent to a potentially dangerous ‘product’.
507    Furthermore, as regards the legal obligations under Article 2 TEU, that institution is of the view that there is nothing in the wording of that article to suggest that it is not legally binding.
508    First of all, it follows from the preamble to the EU Treaty that Article 2 thereof is not purely programmatic. It is in that context that the Court has held that that article is not merely a statement of policy guidelines or intentions, but contains values which are an integral part of the very identity of the Union as a common legal order.
509    Next, the general principles of EU law are defined generally and are often given concrete expression by other provisions of primary or secondary law, without being devoid of binding force or clarity.
510    In addition, it follows from the case-law of the Court that the legally binding nature of Article 2 TEU is consistent with the mutual trust which must exist between the Member States, with each Member State sharing with all the other Member States the common values on which the Union is founded, as is stated in that article.
511    Moreover, the Commission remarks that, contrary to Hungary’s assertions, Article 2 TEU enables it only to find breaches of rules of EU law that are of a certain degree of seriousness or that are of a horizontal nature, that is to say, as in the present case, infringements of Articles 1, 7, 11 and 21 of the Charter.
512    Concerning the alleged breach of the principle non bis in idem, also relied on by Hungary, the Commission notes that the imposing of a penalty is not at issue in the present case, as a judgment finding that there has been a failure by a State to fulfil obligations under Article 258 TFEU is purely declaratory. In any event, that institution submits, making reference to the case-law of the Court, that only individuals may benefit from the application of that principle.
513    Hungary contends that Article 2 TEU is a provision of a general nature, which cannot be the legal basis for an action for a finding that there has been a failure to fulfil obligations, as it lists the common values of the Union. Nor does that article confer a power on the Commission enabling it to control, without restriction, the legal orders of the Member States.
514    The fact that that article has binding force does not mean that infringement thereof may be the subject of an action for a finding that there has been a failure to fulfil obligations under Article 258 TFEU. The procedure provided for in Article 7 TEU is the main means of ensuring that the values guaranteed by Article 2 TEU are respected.
515    It follows from the judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 157 and 158), that certain provisions of the Charter and the FEU Treaty define the scope of the values enshrined in Article 2 TEU, with those provisions – unlike Article 2 TEU when taken in isolation – being capable, as the case may be, of being the subject of an action for a finding that there has been a failure to fulfil obligations. Accordingly, only Article 7 TEU concerns serious breaches of the values set out in Article 2 TEU as such.
516    Furthermore, Hungary maintains that it has not relied on respect for its national identity with the aim of justifying a failure to comply with the EU Treaties, as the amending law is neither in breach of those Treaties nor in breach of provisions of EU secondary law. It contends, by contrast, that the Member States have a margin of assessment in determining the level of protection of the fundamental interests of society as regards issues which are closely connected with their national identities; that margin of assesment was highlighted by Advocate General Collins in his Opinion delivered in Commune d’Ans (C‑148/22, EU:C:2023:378, point 45).
517    Lastly, the fact of a Member State being simultaneously penalised for a breach of the fundamental rights guaranteed by the Charter and for infringement of Article 2 TEU could be contrary to the principle non bis in idem.
518    In any event, the amending law does not seek either to stigmatise non-cisgender or non-heterosexual persons or to exclude them from society.
519    In view of the foregoing considerations, the sixth plea in law is inadmissible or, in the alternative, unfounded.
2.      Findings of the Court
(a)    The binding nature of Article 2 TEU
520    In the first place, regarding Hungary’s argument that Article 2 TEU does not contain specific requirements which, in themselves, could constitute the basis for an action for a finding that there has been a failure to fulfil obligations, it should be borne in mind, as a preliminary point, that the Union possesses a constitutional framework that is unique to it. That framework encompasses the founding values set out in Article 2 TEU, which states that the Union ‘is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’, the general principles of EU law, the provisions of the Charter, and the provisions of the EU and FEU Treaties (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 110 and the case-law cited).
521    In accordance with Article 49 TEU, respect for those values is a prerequisite for the accession to the European Union of any European State applying to become a member of the European Union, thereby bringing together States which have freely and voluntarily subscribed to those values and are continually committed to promoting them (see, to that effect, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 124; of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 142; and of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 104 and the case-law cited).
522    Once a candidate State becomes a Member State, it joins a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded. That premiss is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law and the autonomy it enjoys in relation to the laws of the Member States and to international law. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the EU law that implements them will be respected (see, to that effect, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 125, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 143 and the case-law cited).
523    It follows from this that compliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State. Compliance with those values cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession (judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 126, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 144 and the case-law cited).
524    Furthermore, a Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the values enshrined in Article 2 TEU. The Member States are thus required to ensure that, in the light of those values, any regression is prevented (see, to that effect, judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 63 and 64 and the case-law cited).
525    It follows that Article 2 TEU is not a mere statement of policy guidelines or intentions, but contains values which are an integral part of the very identity of the Union as a common legal order, and which require the Member States to maintain and promote them. Those values are given concrete expression in principles and provisions comprising more specific legally binding obligations for the Member States (see, to that effect, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 232, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 264).
526    It is true that the preamble to the Charter states, inter alia, that the European Union is based on the principles of democracy and the rule of law and recognises the rights, freedoms and principles set out in the Charter. Articles 1, 6, 7, 10, 11, 20, 21 and 23 of the Charter give concrete expression to the scope of the values of, inter alia, human dignity, freedom, equality, respect for human rights, non-discrimination and equality between women and men, contained in Article 2 TEU (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 157).
527    However, the fact, relied on by Hungary, that the values set out in Article 2 TEU are given concrete expression in other principles and provisions of EU law comprising more specific legally binding obligations for the Member States, in accordance with the case-law referred to in paragraph 525 of the present judgment, cannot call into question the legally binding nature of those values for the Member States.
528    Such an interpretation of that article follows not only from the wording thereof, but also from its context and its origins.
529    First, regarding the wording of Article 2 TEU, it should be borne in mind that it follows from that wording that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
530    It must therefore be found that that article delimits the founding values of the Union which the Member States, bound by those values as a result of their belonging to the Union, mutually undertake to respect, maintain and promote.
531    Second, regarding the context surrounding Article 2 TEU, the general scheme of the EU Treaty also speaks in favour of the values enshrined in that article being of such binding nature.
532    In that regard, the preamble to the EU Treaty already contains a general reference to the ‘the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’, values which thus overlap, at least in part, with the common values listed in Article 2 TEU. However, that preamble does not have binding legal force. Conversely, the insertion of that article into the very body of the EU Treaty, under Title I ‘Common provisions’, tends to support the finding that that provision is binding.
533    Article 49 TEU also speaks, as a contextual element, in favour of an interpretation of Article 2 TEU to the effect that the latter provision has a legally binding nature vis-à-vis the Member States. As has been recalled in paragraph 521 of the present judgment, Article 49 TEU implies that respect for the values listed in Article 2 TEU is a prerequisite for the accession to the European Union of any European State applying to become a member of the European Union, thereby bringing together States which have freely and voluntarily subscribed to those values and are continually committed to promoting them.
534    The same is true of the other provisions of the EU Treaty which explicitly refer to the values of the Union and which thus support the legally binding nature of Article 2 TEU, namely Article 3(1) and (5), Article 7(1) and (2), Article 8(1), Article 13(1), Article 21(2)(a), the first paragraph of Article 32, and Article 42(5) TEU.
535    Third, the preparatory work for Article 2 TEU confirms that interpretation. As was noted by the Advocate General in point 169 of her Opinion, the EU Treaty, in the version preceding the Lisbon Treaty, referred not to the ‘values’ but to the ‘principles’ listed in that article. The concept of ‘values’ was introduced by the Lisbon Treaty, reproducing the drafting used by the Convention on the Future of Europe, according to which the fundamental European values ‘must have a clear non-controversial legal basis so that the Member States can discern the obligations resulting therefrom which are subject to sanction’ (Secretariat of the European Convention, CONV 528/03, p. 11).
536    It follows that the values enshrined in Article 2 TEU are, per se, legally binding, as a result of which there is an obligation, for the Member States and institutions of the Union, to respect, maintain and promote those values.
537    In the second place, regarding Hungary’s argument that a failure to fulfil such obligations under Article 2 TEU cannot be the subject of an action for a finding that there has been a failure to fulfil obligations under Article 258 TFEU, as only the procedure provided for in Article 7 TEU permits a finding that there has been a failure to respect the values enshrined in Article 2 TEU, it should be borne in mind that it follows from case-law that the European Union must be able to defend the values set out in Article 2 TEU, within the limits of its powers as laid down by the Treaties (judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 127, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 145).
538    In that regard, the Court has ruled that, in order to guarantee the fundamental premiss on which the common legal order thus created is based, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law. In accordance with the first subparagraph of Article 19(1) TEU, the Court is to ensure that in the interpretation and application of the Treaties the law is observed in connection with the procedures established by those Treaties, which include actions for a finding that there has been a failure to fulfil obligations governed by Articles 258 to 260 TFEU (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 111 and the case-law cited).
539    The objective pursued by such actions under Article 258 TFEU is an objective finding that a Member State has failed to fulfil its obligations under EU law (judgment of 6 October 2020, Commission v Hungary (Higher education), C‑66/18, EU:C:2020:792, paragraph 56 and the case-law cited).
540    Where there is no derogation from the rule of general jurisdiction which Article 19 TEU confers on the Court to ensure that in the interpretation and application of the Treaties the law is observed, the Court retains jurisdiction to review whether the Member States have, in the context of an action for a finding that there has been a failure to fulfil obligations under Article 258 TFEU, complied with their obligations under Article 2 TEU.
541    Accordingly, Hungary’s argument that only the procedure provided for in Article 7 TEU permits a finding that there has been a failure to respect the values set out in Article 2 TEU cannot succeed.
542    In that regard, it should be borne in mind that the Court has held that, contrary to that Member State’s assertions, in addition to the procedure provided for in Article 7 TEU, numerous provisions of the Treaties, frequently implemented by various acts of secondary legislation, grant the EU institutions the power to examine, determine the existence of, and, where appropriate, impose penalties for, breaches of the values contained in Article 2 TEU committed in a Member State (judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 159, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 195).
543    It necessarily follows that those values cannot be regarded as being incapable of being protected by the European Union except under the procedure provided for in Article 7 TEU (see, to that effect, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 163, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 199).
(b)    Failure to fulfil obligations under Article 2 TEU
544    As a preliminary point, it should be borne in mind that, in addition to the infringements of EU law found in paragraphs 163, 204, 235, 311 and 416 of the present judgment, Hungary has, by adopting the amending law, also acted in breach of Articles 1, 7, 11 and 21 of the Charter, as is apparent from paragraphs 422 and 493 of the present judgment.
545    It is therefore for the Court to assess whether all of those infringements may give rise to an infringement of Article 2 TEU.
546    In the first place, as can be seen from, in essence, the considerations set out in paragraph 536 of the present judgment, the values set out in that article lay down legally binding horizontal obligations within the Union and define the very identity of the Union as a common legal order.
547    However, it does not follow from the legally binding nature of Article 2 TEU that any infringement of a provision of EU law which, directly or indirectly, gives concrete expression to those values necessarily means that there has been infringement of that article.
548    It is true that the breach of several fundamental rights guaranteed by the Charter which give concrete expression to the values enshrined in Article 2 TEU may be an indication that there has been a failure to respect those values.
549    Mutual trust between Member States is based on the recognition of the values enshrined in that article, meaning that, from the moment of their accession, none of those States is to exercise its powers in a way that would go against those values, which define the very identity of the Union as a common legal order, accepted by the Member States on a reciprocal basis (see, to that effect and by analogy, judgment of 29 April 2025, Commission v Malta (Citizenship by investment), C‑181/23, EU:C:2025:283, paragraphs 93 and 95). It should be emphasised in that context that the European Union thus brings together States which, as has been recalled in paragraph 521 of the present judgment, have freely and voluntarily subscribed to those values (including the fundamental rights guaranteed by the Charter), respect them, and undertake to promote them (see, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 66 and the case-law cited).
550    However, an interpretation of that article going beyond what is reflected in paragraph 547 of the present judgment would be liable to deprive the limits imposed on the scope of other provisions of EU law, and, in particular, the provisions of the Charter, which, pursuant to Article 51(1) thereof, are addressed to the Member States only when they are implementing Union law, of all effectiveness.
551    Accordingly, only manifest and particularly serious breaches of one or more values common to the Member States may give rise to a finding, in the context of an action for failure to fulfil obligations, that there has been a failure by a Member State to fulfil legally binding obligations under Article 2 TEU, such breaches being incompatible with the very identity of the Union as a common legal order of a society in which pluralism prevails.
552    Given that a finding of infringement of Article 2 TEU is subject to specific conditions derived from the scope of that provision and the obligations attached thereto, Hungary’s argument that a simultaneous breach of the fundamental rights guaranteed by the Charter and infringement of that article would entail a double penalty being imposed on that State for a single infringement cannot succeed, there being nothing to prevent the Court, when hearing an action for failure to fulfil obligations, from being able to find that there have been separate failures to fulfil obligations resulting, for the Member States, from the Charter and from Article 2 TEU.
553    In the second place, it should be emphasised that, in the present case, as was noted, in essence, by the Advocate General in point 258 of her Opinion, the amending law introduces a coordinated series of discriminatory measures reflecting the Hungarian legislature’s view that any content promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality is detrimental to the physical, mental and moral development of minors, which justifies limiting or prohibiting minors’ access to such content.
554    It follows that that law, as is apparent from paragraphs 487 to 491 of the present judgment, results in the stigmatisation and marginalisation of non-cisgender or non-heterosexual persons, solely on the ground of their gender identity or sexual orientation, with those consequences being intensified by the fact that that law also makes an association between the fact of not being cisgender or not being heterosexual, on the one hand, and being convicted of paedophilia, on the other, suggesting that non-cisgender or non-heterosexual persons constitute a fundamental threat to Hungarian and European society, an association which is capable of encouraging the development of hateful conduct towards those persons.
555    Such stigmatisation and marginalisation, which is tantamount to establishing, maintaining or reinforcing the social ‘invisibility’ of some members of society, runs counter to the values of respect for human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU.
556    In those circumstances, it must be held that the amending law is in breach, in a way that is both manifest and particularly serious, of the rights of non-cisgender persons – including transgender persons – or non-heterosexual persons, as well as the values of respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU, with the result that it is contrary to the very identity of the Union as a common legal order in a society in which pluralism prevails.
557    That conclusion cannot be called into question, in the third place, by Hungary’s line of argument that the Member States have, under Article 4(2) TEU, a margin of assessment in determining the level of protection of the fundamental interests of society as regards issues which are closely connected with their national identities.
558    Under that provision, the Union is to respect, inter alia, the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.
559    According to the case-law of the Court, although the Union is required to respect the national identities of the Member States, in accordance with Article 4(2) TEU, with the result that those States enjoy a certain margin of assessment in implementing the values referred to in Article 2 TEU and the principles of EU law giving concrete expression to those values, it in no way follows from this that the obligations resulting from Article 2 TEU may vary from one Member State to another (see, to that effect and by analogy, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 233, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 265).
560    Whilst they have separate national identities, inherent in their fundamental structures, political and constitutional, which the Union is to respect, the Member States subscribe to common values which they share, under Article 2 TEU, and which they have undertaken to respect at all times (see, to that effect and by analogy, judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 234, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 266).
561    In addition, Article 4(2) TEU must be read in the light of provisions of the same rank, in particular Article 2 TEU, and cannot exempt Member States from the obligation to comply with the requirements arising from those provisions (see, to that effect, judgments of 19 November 2024, Commission v Czech Republic (Ability to stand for election and membership of a political party), C‑808/21, EU:C:2024:962, paragraph 158, and of 19 November 2024, Commission v Poland (Ability to stand for election and membership of a political party), C‑814/21, EU:C:2024:963, paragraph 155 and the case-law cited).
562    Accordingly, Article 4(2) TEU protects only a view of the national identities referred to therein which is consistent with the values enshrined in Article 2 TEU.
563    As can be seen from paragraph 556 of the present judgment, as the amending law is in breach of the values of respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU, Hungary cannot validly rely on its national identity as justification for adopting that law.
564    Having regard to the foregoing considerations, it must be concluded that the sixth plea in law is well founded.
C.      Fourth plea in law, alleging infringements of Article 10 of the GDPR and Article 8(2) of the Charter
1.      Arguments of the parties
565    By its fourth plea in law, which must be examined in the last place, the Commission argues that Hungary has failed to fulfil its obligations under Article 10 of the GDPR and Article 8(2) of the Charter.
566    It notes that Paragraph 67(1)(a) to (d) of the Law on the Criminal Records System lays down an obligation for the criminal records body to provide any ‘authorised person’ with direct access to registered data, to transmit data to the authorised person on the basis of a request to that effect, to verify data at the request of the authorised person, and to make available electronically, to the authorised person, the registered data of persons who have committed offences abusing the sexual freedom or sexual morality of children.
567    That institution submits, first, that Paragraph 67(1)(d) of the Law on the Criminal Records System does not provide sufficient guarantees in respect of the rights and freedoms of the persons concerned as regards the conditions for access to their personal data, as that provision does not specify who is ‘authorised’ to access criminal records data electronically (via the interface).
568    In that regard, a designation as broad and imprecise as that set out in Paragraph 67(1)(a) to (d) of that law gives rise to legal uncertainty concerning the persons who have access to the records, in breach of Article 10 of the GDPR.
569    Under that article, access to personal data must take place on the basis of objective criteria and only to the extent that it is justified and necessary. However, regarding Paragraph 75/B(3)(a)(ab) of the Law on the Criminal Records System, even persons who are only briefly responsible for a minor may be regarded as having a close connection with that minor and, accordingly, fall within the scope of that provision.
570    In view of the criterion that access to the data concerned must be necessary pursuant to Paragraph 75/B(1) of that law, those persons may legitimately wish to ensure that children are protected and prevent offences abusing the sexual freedom or sexual morality of children or offences involving the exploitation of children.
571    However, it follows from the judgment of 22 June 2021, Latvijas Republikas Saeima (Penalty points) (C‑439/19, EU:C:2021:504, paragraph 110 and the case-law cited), that the criterion of necessity is not fulfilled where the objective of general interest can reasonably be achieved just as effectively by other, less restrictive means.
572    Second, the Commission argues that the criteria for access to data registered in the criminal records system, within the framework of the Law on the Criminal Records System, do not offer ‘appropriate safeguards for the rights and freedoms of data subjects’ for the purposes of Article 10 of the GDPR, as those criteria can guarantee only that the processing of criminal data meets the general requirements of necessity and proportionality.
573    It specifies in that regard that, in accordance with Articles 5 and 6 of the GDPR, public access to personal data contained in official documents can be granted only if it is demonstrated that disclosure is necessary. In the present case, no mechanism has been implemented for assessing, on the basis of objective criteria, whether there is a need for access.
574    Third, the Commission submits that Article 86 of the GDPR, which concerns the disclosure of personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest, also does not provide for any exemptions or derogations from the data protection rules.
575    Hungary contends that the guarantees required by Articles 10 and 86 of the GDPR are provided by Paragraph 67(1)(a) to (d) of the Law on the Criminal Records System and are supported by data security measures corresponding to the level of personal data protection provided for in Article 5(1)(f) of the GDPR, as well as Article 24 thereof.
576    Paragraph 67(1)(d) of the Law on the Criminal Records System provides a sufficiently precise definition of the persons who are authorised to access the data of persons who have committed offences abusing the sexual freedom or sexual morality of children.
577    It follows from Paragraph 75/B(3) of that law that the procedure for accessing personal data from the criminal record of the person concerned cannot be initiated except by an adult who is a relative of the minor concerned or who is responsible for the education, care or supervision of that minor.
578    Hungary maintains that, pursuant to Paragraph 8:1(1)(2) of the Hungarian Civil Code, the concept of ‘relative’ includes spouses, consanguineous relatives, adoptive children, children of spouses and foster children, adoptive parents, step-parents and foster parents, and siblings, as well as life partners, spouses of consanguineous relatives, consanguineous relatives of spouses, siblings of spouses, and spouses of siblings.
579    Furthermore, it is apparent from Paragraph 4:146(1) and Paragraph 4:224 of that code that minor children are to be under parental responsibility or guardianship, which authorises parents or guardians to manage the child’s property and to provide him or her with legal representation, which includes the right to request access to data under the Law on the Criminal Records System.
580    Under Paragraph 75/B(1) of the Law on the Criminal Records System, access to the data in question must be necessary, with the need for and the proportionality of access to data registered in the criminal records system thus being based on objective and subjective criteria.
581    Hungary adds that the functioning of the electronic interface used in connection with accessing personal data from the criminal record of the person concerned provides appropriate safeguards for the purposes of Article 10 of the GDPR. Before requesting data regarding that criminal record, the person making the request must make a declaration concerning the objectives of the request, based on ‘strict search criteria’.
582    It is also apparent from recital 4 of the GDPR that the right to the protection of personal data is not absolute, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. Safeguarding the rights of the child as enshrined in Article 24 of the Charter must prevail over the right to the protection of personal data. Moreover, that objective cannot be achieved by other reasonable means which are as effective as the necessary and proportionate limitation of the right to the protection of personal data.
583    Concerning the disclosure of criminal data under Article 86 of the GDPR, Hungary remarks that neither disclosure nor the revealing of the content of an official document is at issue in the present case.
2.      Findings of the Court
584    As a preliminary point, it should be borne in mind that the objective pursued by the GDPR, as is set out in Article 1 of that regulation as well as 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 regard to the processing of personal data, as enshrined in Article 8(1) of the Charter and Article 16(1) TFEU (judgment of 9 January 2025, Mousse, C‑394/23, EU:C:2025:2, paragraph 21 and the case-law cited).
585    In accordance with that objective, any processing of personal data must, inter alia, comply with the principles relating to the processing of such data set out in Article 5 of that regulation and satisfy the conditions regarding lawfulness listed in Article 6 of that regulation (judgment of 9 January 2025, Mousse, C‑394/23, EU:C:2025:2, paragraph 22 and the case-law cited).
586    Article 5(1)(a) of the GDPR provides that personal data are to be processed lawfully, fairly and in a transparent manner in relation to the data subject.
587    As regards the conditions for lawful processing, as has been held by the Court, the first subparagraph of Article 6(1) of the GDPR sets out an exhaustive and restrictive list of the cases in which processing of personal data can be regarded as lawful. Thus, in order to be capable of being regarded as such, processing must fall within one of the cases provided for in that provision (judgment of 9 January 2025, Mousse, C‑394/23, EU:C:2025:2, paragraph 25 and the case-law cited).
588    As has been held by the Court, where it can be found that the processing of personal data is necessary in respect of one of the justifications provided for in points (b) to (f) of the first subparagraph of Article 6(1) of the GDPR, it is not necessary to determine whether that processing also falls within the scope of another of those justifications (judgment of 4 July 2023, Meta Platforms and Others (General terms of use of a social network), C‑252/21, EU:C:2023:537, paragraph 94 and the case-law cited).
589    In that context, the justifications provided for in points (b) to (f) of the first subparagraph of Article 6(1) of the GDPR, in so far as they allow the processing of personal data carried out in the absence of the data subject’s consent to be made lawful, must be interpreted restrictively (judgment of 9 January 2025, Mousse, C‑394/23, EU:C:2025:2, paragraph 27 and the case-law cited).
590    Under point (e) of the first subparagraph of Article 6(1) of the GDPR, processing is lawful if and to the extent that it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
591    It should also be noted that, regarding public access to official documents, Article 86 of the GDPR provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by that authority or body in accordance with Union law or the law of the relevant Member State in order to reconcile public access to official documents with the right to the protection of personal data.
592    That article must be read in the light of, first, recital 4 of the GDPR, which states, inter alia, that the right to the protection of personal data is not an absolute right, and second, recital 154 of that regulation, from which it is apparent, inter alia, that public access to official documents may be considered to be in the public interest (see, to that effect, judgment of 3 April 2025, Ministerstvo zdravotnictví (Data concerning the representative of a legal person), C‑710/23, EU:C:2025:231, paragraph 39 and the case-law cited).
593    In the present case, Paragraph 67(1) of the Law on the Criminal Records System provides that the criminal records body, from the criminal records information system and in accordance with the provisions of that law, is: under point (a) of that provision, to provide the authorised person with direct access to registered data; under point (b) thereof, to transmit data to the authorised person on the basis of a request to that effect; under point (c) thereof, to verify data at the request of the authorised person; and, under point (d) thereof, to make available electronically, to the authorised person, the registered data of persons who have committed offences abusing the sexual freedom or sexual morality of children.
594    The processing of data relating to criminal convictions referred to, in particular, in Paragraph 67(1)(d) of the Law on the Criminal Records System is capable of falling under point (e) of the first subparagraph of Article 6(1) of the GDPR.
595    However, as regards data relating to criminal convictions and offences, Article 10 of the GDPR makes the processing of such data subject to additional restrictions. In accordance with that article, the processing of such data ‘shall be carried out only under the control of official authority’ unless it is ‘authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects’. Any comprehensive register of criminal convictions is to be kept only under the control of official authority (judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 47 and the case-law cited).
596    The Court has already held that neither point (e) of the first subparagraph of Article 6(1) of the GDPR nor Article 10 of that regulation lays down a general and absolute prohibition preventing a public authority from being empowered, or indeed compelled, to disclose personal data to persons requesting such data (judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 48 and the case-law cited).
597    Thus, the GDPR does not, in principle, preclude personal data from being made available to the authorised person where such making available is necessary for the performance of a task carried out in the public interest or in the exercise of official authority for the purposes of point (e) of the first subparagraph of Article 6(1) of that regulation. That is so even where the data in question are covered by Article 10 of the GDPR, provided that the legislation authorising that making available provides for appropriate safeguards for the rights and freedoms of data subjects (judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 49 and the case-law cited).
598    In the present case, it is thus for the Court to verify whether Paragraph 67(1)(d) of the Law on the Criminal Records System, in particular the designation of the ‘authorised person’ as referred to in that provision, meets the requirements laid down in Article 10 of the GDPR, in the light of the principle of proportionality, weighing the right of that ‘authorised person’ to access those data against the right, enshrined in Article 8 of the Charter, to the protection of personal data.
599    In that latter regard, it should be borne in mind that the fundamental rights to respect for private life and to the protection of personal data are – as is stated in recital 4 of the GDPR – not absolute rights, but must be considered in relation to their function in society and be weighed against other fundamental rights. Limitations may therefore be imposed, so long as, in accordance with Article 52(1) of the Charter, they are provided for by law, respect the essence of the fundamental rights and observe the principle of proportionality. Under the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. They must apply only in so far as is strictly necessary and the legislation which entails the interference must lay down clear and precise rules governing the scope and application of the measure in question (judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 52 and the case-law cited).
600    In that regard, Article 8(2) of the Charter specifies that personal data must, inter alia, be processed fairly ‘for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law’.
601    In order to determine whether making available personal data relating to criminal convictions is necessary for the performance of a task carried out in the public interest or in the exercise of official authority for the purposes of point (e) of the first subparagraph of Article 6(1) of the GDPR and whether the national legislation authorising that making available provides for appropriate safeguards for the rights and freedoms of data subjects, as referred to in Article 10 of that regulation, it is necessary to assess, in particular, whether, in view of the seriousness of the interference with the fundamental rights to respect for private life and to the protection of personal data caused by the processing concerned, that processing appears justified and, in particular, proportionate, for the purpose of achieving the objectives pursued (see, by analogy, judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 53 and the case-law cited).
602    As regards the seriousness of the interference with those rights, the Court has already held that the processing of data relating to criminal convictions and offences or related security measures is, because of the particularly sensitive nature of those data, liable to constitute a particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, guaranteed by Articles 7 and 8 of the Charter. Since such data relate to behaviour that gives rise to social disapproval, the grant of access to those data is thus liable to stigmatise the data subject and thereby to constitute a serious interference with his or her private or professional life (judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 54 and the case-law cited).
603    Having regard to the case-law referred to in paragraph 601 of the present judgment, it must be pointed out, in the first place, as was noted by the Advocate General in point 348 of her Opinion, that the objective pursued by Paragraph 67(1)(d) of the Law on the Criminal Records System, namely the protection of minors and the prevention of offences abusing the sexual freedom or sexual morality of children or of offences involving the exploitation of children, constitutes an objective of general interest recognised by the European Union for the purposes of the case-law referred to in paragraph 599 of the present judgment, capable of serving as a basis for the performance of a task carried out in the public interest under point (e) of the first subparagraph of Article 6(1) of the GDPR.
604    That being said, whilst public access to official documents, as referred to in Article 86 of the GDPR, such as the criminal records system concerned in the present case by the Law on the Criminal Records System, in which criminal convictions are registered, constitutes, as can be seen from recital 154 of that regulation, a public interest capable of justifying the disclosure of personal data contained in such documents, that access must nevertheless be reconciled with the fundamental rights to respect for private life and to the protection of personal data, as Article 86 of the GDPR indeed expressly requires (judgment of 7 March 2024, Endemol Shine Finland, C‑740/22, EU:C:2024:216, paragraph 55 and the case-law cited).
605    It is therefore necessary to verify, in the second place, whether the making available of those data, on the basis of Paragraph 67(1)(d) of the Law on the Criminal Records System, is necessary for the performance of that task carried out in the public interest for the purposes of point (e) of the first subparagraph of Article 6(1) of the GDPR, that is to say, whether that making available appears to be justified and, in particular, proportionate.
606    The Commission submits that Paragraph 67(1)(d) of that law does not offer sufficient guarantees in respect of the rights and freedoms of the persons concerned as regards the conditions for access to their personal data, given that that provision does not clearly specify the persons authorised to access criminal records data.
607    Hungary, however, is of the view that that provision provides a sufficiently precise definition of those authorised persons.
608    As can be seen from the case-law of the Court, national legislation which grants access to personal data must, in order to satisfy the requirement of proportionality, lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, so that the persons whose personal data are affected have sufficient guarantees that those data will be effectively protected against the risk of abuse. That legislation must indicate in what circumstances and under which conditions a measure providing for the processing of such data may be adopted, thereby ensuring that the interference is limited to what is strictly necessary (see, to that effect, judgments of 2 March 2021, Prokuratuur (Conditions of access to data relating to electronic communications), C‑746/18, EU:C:2021:152, paragraph 48, and of 5 April 2022, Commissioner of An Garda Síochána and Others, C‑140/20, EU:C:2022:258, paragraph 54 and the case-law cited).
609    First, Paragraph 67(1)(d) of the Law on the Criminal Records System cannot be regarded as laying down such clear and precise rules. In particular, the concept of ‘authorised person’ referred to in that provision, which covers persons entitled to submit a request for access thereunder, is not sufficiently strictly defined either by the Law on the Criminal Records System or by the Hungarian Civil Code.
610    Those laws cannot be interpreted as providing a sufficiently precise definition of a person who can be classified as an ‘authorised person’ for the purposes of Paragraph 67(1)(d) of the Law on the Criminal Records System.
611    In accordance with Paragraph 75/B(3)(a) of that law, read in the light of Paragraph 8:1(1)(2) of the Hungarian Civil Code, the making available of data may be initiated by an adult who is a relative of the minor concerned or who is responsible for the education, care or supervision of that minor.
612    That definition does not comply with the requirement, derived from the case-law referred to in paragraph 608 of the present judgment, that interference with the fundamental rights to respect for private life and to protection of personal data be limited to what is strictly necessary, as the circle of persons potentially entitled to submit a request for access to data under Paragraph 67(1)(d) of the Law on the Criminal Records System is too broad, in particular as regards adults responsible for the education, care or supervision of the minor concerned, as referred to in Paragraph 75/B(3)(a) of that law.
613    As was emphasised, in essence, by the Advocate General in point 354 of her Opinion, it should be noted that the processing of personal data relating to criminal convictions and offences, under Article 10 of the GDPR, must be foreseeable. That requirement has not been met in the present case, in view of the definition of the concept of ‘authorised person’ as referred to in Paragraph 67(1)(d) of the Law on the Criminal Records System by the applicable national legislation.
614    Second, the substantive conditions for access to those data also cannot be considered to be sufficiently precise to meet the requirement of ‘appropriate safeguards for the rights and freedoms of data subjects’ under Article 10 of the GDPR, with those safeguards meeting the general requirements of necessity and proportionality.
615    In the present case, Paragraph 75/B(3)(b) of the Law on the Criminal Records System, read in conjunction with Paragraph 75/B(1) of that law, provides for the making available of those data where access is necessary for the purpose of protecting children and preventing offences abusing the sexual freedom or sexual morality of children or offences involving the exploitation of children.
616    It must therefore be held, as was noted by the Advocate General in point 357 of her Opinion, that Paragraph 75/B(3)(b) of the Law on the Criminal Records System entrusts the assessment of the need for, and the proportionality of, such access to the person requesting access alone, rather than to the competent authority controlling access to criminal records.
617    In view of the sensitive nature of data relating to criminal convictions and the seriousness of the interference with the fundamental rights of the persons concerned to respect for private life and to the protection of personal data caused by the disclosure of those data, it must be held that such self-declaration on the part of the person requesting access as regards the need for the request for access to those data is manifestly not capable of limiting that interference to what is strictly necessary.
618    In those circumstances, Paragraph 67(1)(d) of the Law on the Criminal Records System, read in conjunction with Paragraph 75/B(3)(b) thereof, does not provide for appropriate safeguards for the rights and freedoms of data subjects for the purposes of Article 10 of the GDPR and cannot therefore justify the processing of personal data appearing in the criminal record of the persons concerned on the ground that it is necessary for the performance of a task carried out in the public interest as referred to in point (e) of the first subparagraph of Article 6(1) of that regulation.
619    Having regard to the foregoing considerations, it must be concluded that the fourth plea in law is well founded.
IV.    Costs
620    Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, as Hungary has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by that institution.
621    Under Article 140(1) of those rules, the Member States and the institutions which have intervened in the dispute are to bear their own costs. Consequently, the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, 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 and the Kingdom of Sweden, as well as the European Parliament, are to bear their own costs.
On those grounds, the Court (Full Court) hereby:
1.      Declares that, by introducing Paragraph 6/A into the a gyermekek védelméről és a gyámügyi igazgatásról szóló 1997. évi XXXI. törvény (Law No XXXI of 1997 on the protection of children and the administration of guardianship) of 8 May 1997, Hungary has failed to fulfil its obligations under 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, and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union;
2.      Declares that, by introducing Paragraph 8(1a) into the a gazdasági reklámtevékenység alapvető feltételeiről és egyes korlátairól szóló 2008. évi XLVIII. törvény (Law No XLVIII of 2008 laying down the basic requirements and certain restrictions applicable to commercial advertising activities) of 28 June 2008, Hungary has failed to fulfil its obligations under 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), as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, Article 3(2) of Directive 2000/31, Articles 16 and 19 of Directive 2006/123, and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights;
3.      Declares that, by introducing Paragraph 9(6) into the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. törvény (Law No CLXXXV of 2010 on media services and mass media communications) of 31 December 2010, as well as by adopting Paragraph 32(4a) of that law, Hungary has failed to fulfil its obligations under Article 6a(1) of Directive 2010/13, as well as Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights;
4.      Declares that, by amending Paragraph 179(2) of Law No CLXXXV of 2010 on media services and mass media communications, Hungary has failed to fulfil its obligations under Article 2 and Article 3(1) of Directive 2010/13;
5.      Declares that, by amending Paragraph 9(12) of the a nemzeti köznevelésről szóló 2011. évi CXC. törvény (Law No CXC of 2011 on national public education) of 29 December 2011, Hungary has failed to fulfil its obligations under Articles 16 and 19 of Directive 2006/123, as well as Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights;
6.      Declares that, by adopting the provisions of the a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. törvény (Law No LXXIX of 2021 laying down stricter measures in respect of persons convicted of paedophilia and amending certain laws adopted in the interests of the protection of children) of 15 June 2021, thereby making the legislative amendments referred to in points 1 to 5 of this operative part, Hungary has failed to fulfil its obligations under Article 2 TEU;
7.      Declares that, by amending Paragraph 67(1)(a) to (d) of the a bűnügyi nyilvántartási rendszerről, az Európai Unió tagállamainak bíróságai által magyar állampolgárokkal szemben hozott ítéletek nyilvántartásáról, valamint a bűnügyi és rendészeti biometrikus adatok nyilvántartásáról szóló 2009. évi XLVII. törvény (Law No XLVII of 2009 on the criminal records system, the registration of judgments handed down by the courts of the Member States of the European Union against Hungarian citizens, and the registration of biometric data in criminal and law enforcement matters) of 19 June 2009, Hungary has failed to fulfil its obligations under 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 of Fundamental Rights;
8.      Orders Hungary to bear its own costs and to pay those incurred by the European Commission;
9.      Declares that the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, 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 and the Kingdom of Sweden, as well as the European Parliament, are to bear their own costs.
[Signatures]
*      Language of the case: Hungarian.