Case C-769/22: Action brought on 19 December 2022 — European Commission v Hungary
Date: 2022-12-19
Institutions: Court of Justice
Subjects: LGBTIQ persons, advertising, audiovisual industry, control of communications, data protection, electronic commerce, gender reassignment, infringement of EU law, sexual offence, young person








C_2023054EN.01001601.xml










13.2.2023   


EN


Official Journal of the European Union


C 54/16






Action brought on 19 December 2022 — European Commission v Hungary
(Case C-769/22)
(2023/C 54/19)
Language of the case: Hungarian

Parties


Applicant: European Commission (represented by: V. Di Bucci, K. Talabér-Ritz, L. Malferrari and J. Tomkin, acting as Agents)

Defendant: Hungary

Form of order sought

The Commission claims that the Court should:
declare that, by adopting the a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. törvény (Law LXXIX of 2021 adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children), Hungary has failed to fulfil its obligations under EU law in the following ways:






(1)


 






—


by prohibiting children from accessing content which promotes or portrays gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality, Hungary has infringed Article 3(2) of Directive 2000/31/EC on electronic commerce, (1) Articles 16 and 19 of Directive 2006/123/EC on services in the internal market, (2) Article 56 TFEU and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union.










—


by prohibiting children from accessing advertising which promotes or portrays gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality, Hungary has infringed Article 9(1)(c)(ii) of Directive 2010/13/EU on audiovisual media services, (3) Article 3(2) of Directive 2000/31/EC on electronic commerce, Articles 16 and 19 of Directive 2006/123/EC on services in the internal market, Article 56 TFEU and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union.










—


by imposing on media service providers which offer linear media services an obligation to classify under Category V all programmes the essential element of which is the promotion or portrayal of gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality, and thus to broadcast those programmes between 22.00 and 05.00, and by excluding such programmes from classification as public interest media or as socially beneficial advertising, Hungary has infringed Article 6a(1) of Directive 2010/13/EU on audiovisual media services and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union.










—


by imposing on the Media Council an obligation to request that the Member State having jurisdiction over the media service provider take effective measures and take action to put an end to infringements detected by the Media Council, Hungary has infringed Articles 2 and 3(1) of Directive 2010/13/EU on audiovisual media services.










—


by prohibiting professions related to sexual culture, sexual life, sexual orientation and sexual development from being aimed at the promotion of gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality, Hungary has infringed Articles 16 and 19 of Directive 2006/123/EU on services in the internal market, Article 56 TFEU and Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union.














(2)


by adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU.










(3)


by imposing on the body with direct access to the registered data an obligation to make available, to persons entitled to access them, the registered data of persons who have committed, against children, offences against sexual freedom and sexual morality, Hungary has infringed Article 10 of Regulation (EU) 2016/679 on general data protection, as well as Article 8(2) of the Charter of Fundamental Rights of the European Union.










(4)


order Hungary to pay the costs.





Pleas in law and main arguments

On 15 June 2021, the Hungarian Parliament adopted the a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. törvény (Law LXXIX of 2021 adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children), which entered into force on 8 July 2021. The Law contains amendments to a number of different legal provisions covering, inter alia, media services, advertising, electronic commerce and education. The amendments impose a number of prohibitions and restrictions in relation to the promotion or portrayal of gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality.
On 15 July 2021, the Commission initiated infringement proceedings against Hungary in relation to Law LXXIX of 2021.
Finding that the response provided by Hungary was unsatisfactory, the Commission moved to the next phase of the infringement proceedings and, on 2 December 2021, sent Hungary a reasoned opinion.
Finding that the response to the reasoned opinion was also unsatisfactory, the Commission decided to refer the case to the Court of Justice for a declaration that Hungary has failed to fulfil its obligations under Articles 2, 3(1), 6a(1), and 9(1)(c)(ii) of Directive 2010/13/EU on audiovisual media services, Article 3(2) of Directive 2000/31/EC on electronic commerce, Articles 16 and 19 of Directive 2006/123/EC on services in the internal market, Article 10 of Regulation (EU) 2016/679 on general data protection, Article 56 TFEU, Articles 1, 7, 8(2), 11 and 21 of the Charter of Fundamental Rights of the European Union, and Article 2 TEU.


(1)  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 (OJ 2000 L 178, p. 1).

(2)  OJ 2006 L 376, p. 36.

(3)  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 (OJ 2010 L 95, p. 1).