25 Juni 2021

Attack on the Rights of LGBTQIA+ People in Hungary: Not Just Words, but Deeds as Well?

An Open Letter

On 15 June, the Hungarian parliament voted by an overwhelming majority to pass legislation that, in essence, and under the pretext of protecting minors, bans images or content that depicts or ‘promotes’ homosexuality or trans-identity from the public space.

The new law adds to a long list of measures already adopted by Hungary over the past several years, that also have the objective of discriminating and stigmatising the LGBTQIA+ population. These measures moreover are part of a wider context of deliberate erosion of liberal democracy in Hungary.

Last Tuesday, at the European General Affairs Council, a majority of EU Member States, at the initiative of Belgium, expressed in a joint declaration their deep concern at such abuses, which come on top of other challenges to the most basic principles of the rule of law and the protection of fundamental rights in Hungary. „We cannot compromise on these principles„, the states concerned affirm. This strong statement can only be welcomed. It remains to be seen however what action might follow.

There are no longer any illusions about the results, in the short or medium term, of the procedure that has, since September 2018, been underway against Hungary, on the basis of Article 7(1) of the Treaty on European Union (TEU), due to the existence of a „ a clear risk of a serious breach“ of the founding values of the Union referred to in Article 2 of the TEU. This procedure is currently bogged down and has, in any case, clearly demonstrated the limits of its dissuasive character, both with regard to Hungary and Poland.

Will we instead turn to the Court of Justice of the European Union? This is suggested by the signatory states of the above-mentioned declaration, when they “urge the European Commission as Guardian of the Treaties to use all the tools at its disposal to ensure full respect for EU law, including by referring the matter to the ECJ”. In fact, however, the States themselves, individually or collectively, could, according to the treaties, already take the initiative for such an action for failure to fulfil obligations. However, this is not the main issue. The problem rather is that Hungary can – under the relevant procedure – only be held accountable for respecting the fundamental rights guaranteed by the European Union, under the supervision of the Court of Luxembourg, while „implementing EU law„, and only to that extent. It is not a foregone conclusion that all discrimination and infringements of freedom of expression under Hungarian law fall within this limited scope.

The European Union’s toolbox reveals its limits here. Why, therefore, not turn to the Council of Europe, with its European Convention on Human Rights and European Court of Human Rights? In a 2017 judgment in Bayev and Others v. Russia, this Court unequivocally condemned Russian legislation similar to that which Hungary has just enacted. „By adopting such laws„, the judgment states, the Russian authorities had „reinforce[d] stigma and prejudice“ and encouraged homophobia, “which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society”. The Bayev case was brought before the Strasbourg Court by three individual applicants. However, it should be remembered that these applicants do not have a monopoly on the right to undertake legal action. Article 33 of the Convention also allows any of the 47 member states of the Council of Europe to bring before the Court any violation of the Convention committed by another of these states. This possibility, which is often neglected, embodies a form of “collective guarantee”.  Thus, the State making the application is not acting on its own behalf, but in the name of the common interest, in order to submit to the Court „a question affecting the public policy of Europe„.

Has not the time come for this? When will the case of Belgium and 16 other Member States v. Hungary see the light of day, in order to denounce in Strasbourg the discrimination and attacks on freedom of expression of which the Hungarian institutions are guilty, and that violate European public order?

List of signatories:

Sébastien Van Drooghenbroeck – Professor at the University Saint-Louis – Brussels

Cecilia Rizcallah – Visiting Professor at the University Saint-Louis – Brussels and at the Free University of Brussels (ULB)

Emmanuelle Bribosia – Professor at the Free University of Brussels (ULB)

Olivier de Schutter – Professor at the Catholic University of Louvain (UCL)

Isabelle Rorive – Professor at Free University of Brussels (ULB)

Jogchum Vrielink – Professor at the University Saint-Louis – Brussels

Stéphanie Wattier – Professor at the University of Namur

Evelyne Maes – Lawyer and Visiting Professor at the University Saint-Louis – Brussels and the University of Liège

Annemie Schaus – Rector and Professor at the Université libre de Bruxelles (ULB)

Anne Weyembergh – Vice-Rector and Professor at the Free University of Brussels (ULB)

Isabelle Hachez – Professor at the University Saint-Louis – Brussels

Patricia Popelier – Professor at the University of Antwerp

Jean Jacqmain – Professor at the Université libre de Bruxelles (ULB)

Koen Lemmens – Professor at the University of Leuven (KU Leuven)

Eva Brems – Professor at Ghent University

Stijn Smet – Professor at the University of Hasselt

Patrick Wautelet – Professor at the University of Liège

Julie Ringelheim – Qualified researcher at the National Fund for Scientific Research

Paul de Hert – Free University of Brussels (VUB)

Antoine Bailleux – Professor at the University Saint-Louis – Brussels

Sylvie Saroléa – Professor at the Catholic University of Louvain (UCL)

Elise Muir – Professor at the University of Leuven (KU Leuven)

Françoise Tulkens, Professor emeritus at the Catholic University of Louvain (UCL)

A previous version of this post contained an erroneous information about the affiliation of Prof. Vrielink which has been corrected.


SUGGESTED CITATION  Van Drooghenbroeck, Sébastien, Rizcallah, Cecilia, Bribosia, Emmanuelle, De Schutter, Olivier, Rorive, Isabelle; Vrielink, Jogchum: Attack on the Rights of LGBTQIA+ People in Hungary: Not Just Words, but Deeds as Well?: An Open Letter, VerfBlog, 2021/6/25, https://verfassungsblog.de/attack-on-the-rights-of-lgbtqia-people-in-hungary-not-just-words-but-deeds-as-well/, DOI: 10.17176/20210625-193359-0.

4 Comments

  1. Stuart James Attewell Sa 26 Jun 2021 at 11:35 - Reply

    What do you do at the end of the day when the Hungarian Government responds to all such judgements…So What? We are then into the game of Chicken. It becomes a political question for the heads of state of the other member countries. Do we expel Hungary? Do we have the political will to risk splitting the EU knowing that others might follow leading to the disintegration of the EU as it is currently constituted? The EU is first and foremost a political structure that draws its „strength“ and indeed its weakness as much from its size as from the level of integration and commonality of policies of its members.

  2. Emilio De Capitani Sa 26 Jun 2021 at 11:44 - Reply

    Unfortunately in the EU Treaties there is no „expulsion“ clause (unlike in art. 8 of the Council of Europe Statute). But the other point is that you may create at EU level a stronger legal framework protecting discriminations grounded on sexual orientation. A long awaited legislative proposal on this kind of discriminations is pending before the Council of the European Union since …2008 and, it may surprise you but is mainly blocked by Germany who claims that is contrary to subsisdiarity (and its implementation will be too costly…. )
    (SEE below a recent Council report on this subject Doc 9109/21 of June 4 2021).

    Will the Orban’s saga unblock the new EU rules on this domain ?

    In 2000 it was the Haider case which triggered the adoption of the first two antidiscrimination directives… but after the 2004 enlargement the EU is no more the same…
    Emilio De Capitani

    COUNCIL PROGRESS REPORT
    ———————
    I. INTRODUCTION
    On 2 July 2008, the Commission adopted a proposal for a Council Directive aiming to extend the protection against discrimination on the grounds of religion or belief, disability, age or sexual orientation to areas outside employment.
    Complementing existing EC legislation in this area, the proposed horizontal equal treatment Directive would prohibit discrimination on the above-mentioned grounds in the following areas: social protection, including social security and healthcare; education; and access to goods and services, including housing
    A large majority of delegations has welcomed the proposal in principle, many endorsing the fact that it aims to complete the existing legal framework by addressing all four grounds of discrimination through a horizontal approach.
    Most delegations have affirmed the importance of promoting equal treatment as a shared value within the EU. In particular, several delegations have underlined the significance of the proposal in the context of the UN Convention on the Rights of Persons with Disabilities (UNCRPD). However, some delegations would have preferred more ambitious provisions in regard to disability.
    While emphasising the importance of the fight against discrimination, certain delegations have, in the past, questioned the need for the Commission’s proposal, which they have seen as infringing on national competence for certain issues and as conflicting with the principles of subsidiarity and proportionality.
    Certain delegations have also requested clarifications and expressed concerns relating, in particular, to the lack of legal certainty, the division of competences, and the practical, financial and legal impact of the proposal.
    Two delegations have maintained general reservations on the proposal as such. For the time being, all delegations have maintained general scrutiny reservations on the text.
    CZ and DK have maintained parliamentary scrutiny reservations. While supporting the search for a compromise, the Commission has affirmed its original proposal at this stage and maintained a scrutiny reservation on any changes thereto.
    The European Parliament adopted its Opinion on 2 April 2009 under the Consultation Procedure. Following the entry into force of the Lisbon Treaty on 1 December 2009, the proposal now falls under Article 19 of the Treaty on the Functioning of the European Union; thus unanimity in the Council is required, following the consent of the European Parliament.
    II. THE COUNCIL’S WORK UNDER THE PORTUGUESE PRESIDENCY
    The Portuguese Presidency presented a comprehensive compromise proposal which was examined by the Working Party on Social Questions on 28 May. The Presidency drafting suggestions focused on three main outstanding issues, namely: 1) subsidiarity concerns; 2) the cost arising from the implementation of the disability provisions; and 3) legal certainty.
    The delegations gave their preliminary reactions, pending further examination of the new text. A large majority of delegations welcomed the Presidency’s drafting suggestions and supported the renewed attempt to break the longstanding deadlock by addressing the three key issues.
    One delegation stated that the Presidency’s text did not successfully address concerns related to subsidiarity, the scope of the Directive and the cost implications. (NDR GUESS WHO CAN BE THIS DELEGATION….)
    A number of delegations, while declaring their willingness to work towards a compromise, warned against any undue reduction in the level of ambition in the Directive.
    The Commission representative also warned against such dilution of the text but nevertheless saw great merit in the Presidency’s drafting suggestions as a basis for further discussion.
    a) Subsidiarity concerns (Articles 2(, 3, 4a(2), and 7(1); and Recitals 11, 16, 17b, 17f and 17ga)
    In its drafting suggestions, the Presidency has sought to clarify the wording of the Directive so as to make it completely clear that it respects national competences and does not interfere with the design or content of, in particular, national social protection systems, family law and education systems. The Commission representative stressed that the proposed Directive concerned equal treatment, particularly in terms of access, and could not regulate matters falling under national competence.
    The Working Party broadly welcomed the suggested changes to the text. However, one delegation expressed the view that the new wording failed to ensure respect of the subsidiarity principle, including especially in the area of family and private life. Others underlined the importance of finding the right balance between subsidiarity and a need to ensure meaningful protection against discrimination through EU law. Certain delegations also saw a need for further clarification of the interplay between the prohibition of discrimination and rights such as press freedom.
    b) Implementation costs (Articles 4, Articles 4a and 4b, and Article 15)
    In its drafting suggestions, the Presidency has streamlined the main disability provisions by grouping them under “reasonable accommodation” and removing the separate article on “accessibility,” while specifying that the provisions are without prejudice to Union law on accessibility or reasonable accommodation in respect of particular goods or services. Although reasonable accommodation remains a clear obligation as part of the equal treatment principle, it must not cause a disproportionate burden according to the text. In addition, the Presidency has suggested giving the Member States the right, in exceptional circumstances, to address a reasoned request to the European Commission for a temporary exemption from the requirement to provide reasonable accommodation. This suggestion seeks to respond to longstanding concerns expressed by delegations regarding the cost of ensuring the accessibility of housing and infrastructure and the time required for making necessary alterations.
    While the Working Party broadly welcomed the Presidency’s attempt to find a way forward, some delegations strongly affirmed the need to maintain ambitious disability provisions in the text. Some questioned the deletion of the accessibility provisions from the operational part of the text, as well as the compatibility of the suggested temporary exemption with the UNCRPD, under which reasonable accommodation must always be provided unless it gives rise to a disproportionate burden. Delegations therefore saw a need for extensive further reflection on any possible temporary exemption mechanism, including its rationale, the specific modalities that would apply, and the criteria that would need to be met when requesting a temporary exemption..
    (c) Legal certainty (Article 1, Article 2(2, 7 and 7a), Article 4a(4 and 5) and Article 12(3); and Recitals 19ca, 19cb, 19cc, 19d and 20-aa)
    In its drafting suggestions, the Presidency sought to improve legal certainty by clarifying certain concepts or removing them from the text. For example, the concept of multiple discrimination has been clarified by introducing new wording which describes and specifies the possible combination of grounds under the concept, and thereby, more tightly reflects the specific scope of the Directive under discussion. The references to “discrimination by association”, already covered by the CJEU’s case law, and “discrimination by assumption” have been removed.
    While the Working Party welcomed the search for improved legal clarity, some delegations questioned the deletion of discrimination by association and discrimination by assumption from the text. It was suggested that other solutions be explored, including a possible reference to relevant EU case law in the recitals.
    (d) Other issues
    A number of other issues will also require further discussion. These include the delineation of the scope (including subsidiarity in the context of social protection); provisions regarding possible objectively justified differences of treatment on the grounds of age or a health condition; and the terminology to be used in the context of positive action, including “preferential” vs. “differential” treatment and the term “protected groups”.
    III. CONCLUSION
    Tangible progress has been made under the Portuguese Presidency on the issues discussed. While the Presidency’s draft suggestions were broadly welcomed by most delegations, further technical work and political discussion will be needed before the required unanimity can be reached in the Council.

  3. N.W. Mo 28 Jun 2021 at 16:44 - Reply

    Let me be frank and say that focusing on sth that falls under EU competence only in a very limited way, but will polarize MSs is exactly what Orban wants. Do you seriously think he cares about the LGBTQ rights? This is nothing but another game to underline his “entire EU is against us“ narrative. What will happen is that even those people who didn’t like him that much will see themselves personally attacked and see the EU as their enemy. It has now been a couple of years of this narrative and- with refugee issue calming down- Orban needs a new topic. Guess who will welcome the Hungarians with open arms in the East when they crash out of the EU? “Mother Russia“. Is having Russia on the EU borders in our best interest? Really? The level of political incompetence in the West is just stunning. You don’t get rid of popular dictators by antagonizing them and implying that the entire country is the same as their leader (they don’t vote for Orban because of the LGBTQ rights, but because he gives them just enough for them to feel like they live better than before), but by showing to the people that they would be better off without him and offering them a better life after he’s removed from power in regular election. Selling “our values“ story to the people who earn barely enough to put lunch on the table every day is simply laughable and shows that some people are completely detached from reality. Maybe the way out is to actually put someone from the East in charge of this issue in the EU instead of letting the train run into the wall. Maybe West needs to sit this one out cause it seems like they have no clue what they’re dealing with.

    • Stuart Attewell Do 1 Jul 2021 at 14:40 - Reply

      When you consider the current position of the German Supreme Court, their Guardians of the German Constitution, is that that the Treaties did not „cede“ sovereignty in particular areas to Brussels but „delegate“ the sovereignty and thus left the final word on German acceptance of anything that the EU decides on the German Parliament…and maintain the primacy of German law over EU law and ECJ decisions….their is little chance of the issue going further forward.

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