Debate: Breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of the adopted legal changes in the Hungarian Parliament - The outcome of  June hearings under Article of the TEU regarding Poland and Hungary
Date: WEDNESDAY, 7 JULY 2021
Speaker: Věra Jourová
Language: EN

Let me start on the situation of rights of LGBTI citizens in Hungary. As stressed by the Commission President just earlier today, several provisions of the act adopted by the Hungarian National Assembly on 15 June 2021 clearly discriminate against people based on their sexual orientation and go against the fundamental values of the European Union.  Human dignity, equality and respect for human rights – on these values, we cannot compromise. Protecting children against paedophile offenders is without any doubt a shared objective, pursued by all institutions and EU Member States. However, our legitimate public interest is not a valid pretext to introduce provisions that violate fundamental rights and discriminate against a minority group based on their sexual orientation and gender identity. When implementing EU law Member States must fully respect the EU Charter of Fundamental Rights. They must also comply with the EU internal market rules. In the letter mentioned by the Commission President sent by Commissioners Breton and Reynders on 23 June this year to the Hungarian Minister of Justice, the Commission expressed its doubts about the compatibility of the act with EU law, including the Charter of Fundamental Rights.  The provisions of this act prohibit or limit access to content that propagates or portrays divergence from self-identity corresponding to sex at birth, sex change or homosexuality for persons under 18 years. Such content is put on the same footing as pornography and considered as such to be capable of exerting negative influence on the physical and moral development of minors.  By doing so, when it applies within the scope of Union law, this act violates the prohibition of discrimination based on sex and on sexual orientation enshrined in Article 21 of the Charter. These provisions also deny people the freedom to express themselves and hold their own opinion, as well as the right to be informed enshrined in Article 11 of the Charter, as well as to enjoy the right to a private and family life enshrined in Article 7 of the Charter.  In its letter, the Commission set out its legal concerns and asked for clarifications on the act. The Commission stressed in particular that some of the provisions of the act would violate EU law, including the Audiovisual Media Services Directive. Some provisions at issue are also very likely to violate the e-Commerce Directive.  The Commission's assessment of the act is done also with regard to the Treaty governing freedom to provide services and free movement of goods, which are amongst the fundamental principles of the EU internal market and the EU legal order.  The Commission expressed the concern that some of the provisions of the act constitute a restriction to both these fundamental freedoms. According to the case-law of the Court of Justice of the European Union, any restriction to a fundamental Treaty freedom must genuinely pursue a legitimate objective, be necessary, non-discriminatory and proportionate. Moreover, such a restriction cannot violate the prohibition of discrimination based on sex and on sexual orientation enshrined in Article 21 of the Charter.  The act also potentially raises issues as regards the implementation of the EU budget in Hungary, in particular, funds in the shared management. Member States shall implement shared management funds in compliance with the Charter. Under shared management, the rules for both 2014-2020 and the new programming period require Member States and the Commission to prevent any form of discrimination in the preparation and implementation of programmes supported by the funds. In addition for the new period 2021-2027, the Commission will carefully monitor these enabling conditions throughout the programming period, starting with the preparation of the partnership agreements and of the programmes. The European Social Fund Plus Regulation emphasises that all operations must be selected and implemented in respect of the Charter. In cases of infringement of the Charter, the Commission will consider them when determining corrective measures in line with the Common Provisions Regulation.  The Commission will actively monitor the respect of fundamental rights, including the principle of non-discrimination in the execution of the EU budget. On 30 June the Commission received the reply of Hungary to the letter concerning this new act. We are assessing this reply and we will not hesitate to put forward actions in accordance with our role of guardian of the treaty. To conclude on this point, let me recall that the Commission has already shown its firm commitment to address LGBTI discrimination by adopting the equality strategy for 2020-2025. Driven by the belief in a Europe which embraces choice and diversity, the Commission will use all its powers to ensure that the rights of all EU citizens are fully guaranteed.  Let me now turn to the outcome of the hearings of 22 June in the General Affairs Council under the procedure set out in Article 7(1) of the EU Treaty regarding Poland and Hungary. I would like to thank the outgoing Portuguese Presidency for its decision to schedule these two hearings. It had been quite some time since the last formal hearings in these two proceedings had taken place, also due to COVID-19 restrictions. I represented the Commission at the occasion and updated the Council on 22 June on the developments.  As regards the procedure in respect of Hungary, the Commission stressed again that the Council must ensure a fair handling of the recent proposal tabled by the European Parliament. The Commission noted that the situation in Poland and Hungary is not improving and that new developments have given rise to further concerns. As regards Poland, the Commission updated on concerns around the questioning of the primacy of EU law by the Polish authorities and the seizing of the Constitutional Tribunal in that respect, as well as on further deterioration of the situation of judges in the context of the activity of the Disciplinary Chamber. The Commission notes that the concerns regarding the legitimacy and independence of the Constitutional Tribunal, as set out in the recent proposal, have still not been resolved.  On 1 April 2021, the Commission brought a new infringement procedure before the Court of Justice covering a number of judicial reforms set out in the new law on the judiciary. In this procedure the Commission has asked the Court of Justice to impose interim measures suspending all activities of the Disciplinary Chamber as regards cases concerning judges, including decisions to lift the immunity of judges. In their interventions Member States expressed concerns and asked for clarifications related to these developments.  As regards Hungary, the Commission presented key developments raising concerns. These included areas such as the independence of the judiciary and of other institutions, the rights of judges, corruption and conflicts of interest, freedom of expression and media pluralism. The Commission also addressed academic freedom and freedom of association linked to judgments of the European Court of Justice, finding that national provisions in these areas breach EU rules.  The Commission also updated on developments as regards the right to equal treatment and the rights of persons belonging to minorities and the rights of asylum seekers. Many Member States focused their questions on the anti—LGBTI aspects of the recent Hungarian legislation, also referring to a joint statement signed by a number of Member States.  Against this state of play in the two concerned Member States, the Commission considers that it is essential to keep the Article 7 of the Treaty proceedings on the agenda of the General Affairs Council for as long as the underlying concerns that triggered these procedures continue to persist.  The Commission continues to stand ready to provide updates to the Council as regards the rule-of-law-related developments falling under the ongoing Article 7 proceedings, as well as to present its views in the context of formal hearings. The Commission will continue to support the Council in that respect. The Commission remains open and available for a dialogue with the Polish and Hungarian authorities in order to resolve the concerns. And the Commission remains fully committed to continue using all the tools at our disposal to address concerns relating to the respect of our fundamental values, including the rule of law in all the Member States of the European Union.