Somewhere Over The Rainbow

In the original version of the world-renowned musical film “The Wizard of Oz”, the young protagonist Dorothy sings of her wish to escape her currently troubled world and flee to a better place “somewhere over the rainbow”. A similar vision of an ideal “rainbow land” – where all people can enjoy their rights without risk of discrimination – informs the European Commission’s aspiration to make the European Union a safe and inclusive space for sexual and gender minorities (“LGBTIQ”). It is thus no wonder that the Commission launched an infringement procedure against the Hungarian Law LXXIX of 2021 which restricts access of minors to content which “promotes or portrays divergence from self-identity corresponding to the sex assigned at birth, sex change or homosexuality” (known as the “child protection” or “anti-LGBTIQ” law). The procedure culminated to a landmark dispute before the EU Court of Justice in Commission v. Hungary, with the Opinion of Advocate General Ćapeta delivered on 5 June 2025.

What is striking, at least at first sight, is the way in which this case has been framed: despite the blatantly discriminatory nature of Hungary’s legislation, the Commission’s arguments revolve around the violation of several internal market provisions relating to the free movement of services along with certain fundamental rights enshrined in the Charter as well as the values of Article 2 TEU. In my view, however, Commission v. Hungary constitutes a discrimination case in disguise, as Ćapeta’s Opinion confirms. I argue that non-discrimination considerations have been purposively “camouflaged” in the present dispute in order to effectively safeguard the rights of sexual and gender minorities under EU law, given the limited scope of LGBTIQ protection in EU non-discrimination and equality law.

Accordingly, my analysis here offers an EU equality law perspective on the case, leaving aside other important issues raised that have already attracted a great deal of scholarly attention, most prominently the Commission’s unprecedented use of Article 2 TEU as a standalone plea (see e.g. Kaiser, Spieker, Kaiser, Okunrobo, Bonelli and Claes, Riedl, and Rossi).

The limited scope of LGBTIQ protection under EU non-discrimination and equality law

Discrimination cases at EU level are traditionally adjudicated on the basis of EU non-discrimination and equality law. This comprises a set of Directives (the so-called “Equality Directives”) as well as Articles 20 and 21(1) of the Charter, and is notoriously founded on a hierarchy of discrimination grounds, in the sense that certain personal traits (racial/ethnic origin and sex) enjoy a higher level of protection than others (disability, age, sexual orientation and religion) (see Howard). Accordingly, when it comes to discrimination against members of the LGBTIQ community, the protection granted by EU law falls under different legal frameworks and thus varies depending on whether the discriminatory treatment is based on sexual orientation or sex.

More specifically, the prohibition of discrimination on grounds of sexual orientation (i.e. against gay, lesbian or bisexual persons) applies only in the field of employment and occupation pursuant to Directive 2000/78/EC. This is why all cases of discriminatory treatment of homosexuals adjudicated by the CJEU so far concerned solely employment matters (see Maruko, Römer, Hay, NH, Asociaţia Accept), including self-employed activities (see TP). In 2008, the Commission proposed a horizontal Directive which would extend the protection against discrimination irrespective of sexual orientation beyond the labour market. However, the proposal has not reached unanimity in the Council as required by Article 19 TFEU and remains blocked since then (see European Parliament), facing now the risk of being withdrawn due to lack of “foreseeable agreement” between the Member States (see Annex IV of 2025 Commission’s work programme).

As regards the protection of individuals against discrimination on the basis of their gender identity, gender expression or sex characteristics (e.g. trans, non-binary, intersex individuals, etc.), the relevant point of reference is EU gender equality legislation. Following the Court’s ruling in P v. S (further confirmed in KB, Richards and MB), discrimination against trans persons arising from their gender reassignment has been recognised as a form of sex discrimination, with that case law being now codified in recital 3 of Directive 2006/54/EC and recital 5 of Directive (EU) 2024/1500. Hence, people who have undergone gender reassignment can benefit from equal treatment not only in the workplace (Directive 2006/54/EC and Directive 2010/41/EU), but also in a wide range of areas encompassing access to and supply of goods and services (Directive 2004/113/EC) as well as social security (Directive 79/7/EEC). However, as noted by Marcia, the protection against discrimination in this regard seems to be based on a “medicalised understanding” of gender identity, concerning only those individuals who have undergone surgical treatment. As such, the existing anti-discrimination protection excludes a significant percentage of the trans population as well as other gender minorities (e.g. intersex people). However, the CJEU’s recent judgment in Mousse suggests that sex discrimination may also extend to trans individuals who have not undergone a physical change of gender (see Opinion of AG Ćapeta in Commission v. Hungary, para. 62). In any case, although gender identity, gender expression and sex characteristics feature explicitly among the list of traits defining “victims” of sex discrimination under Directive (EU) 2024/1500, it is still unclear whether all the persons affected are covered by the existing legal framework absent any case law on the matter (see European Parliamentary Research Service 2025).

As for Article 21(1) of the Charter enshrining the prohibition of discrimination on any ground including sex and sexual orientation (but not explicitly gender identity or characteristics), it also has a limited scope despite its seemingly open-ended wording, applying solely to the actions of EU institutions and those of the Member States when they are implementing EU law, by virtue of Article 51(1) of the Charter. In fact, the only time Article 21(1) has been mentioned to date in litigation involving discrimination against LGBTIQ minorities was in Léger concerning the implementation of Directive 2004/33/EC. In this case, the CJEU concluded that a French law which entailed a permanent contraindication to blood donation for homosexual men discriminated against them on the grounds of their sexual orientation, subject to justification under Article 52(1) of the Charter.

The threefold guise of non-discrimination considerations

These limits of EU non-discrimination and equality law may explain why the far-reaching discriminatory effects of Hungarian legislation for the LGBTIQ community could not have been fully captured on that legal basis, thereby “forcing” the Commission to opt for a different path. Be that as it may, non-discrimination considerations are abundantly present in Commission v. Hungary, albeit under a threefold guise that corresponds to the three-level structure of the Commission’s argumentation, namely the breach of (1) internal market legislation, (2) Charter-based rights, and (3) the values of Article 2 TEU.

Internal market legislation

Pursuant to the so-called “horizontal equality clause” of Article 10 TFEU, combatting discrimination based, among others, on sex or sexual orientation is relevant to all policy areas of EU law, even in those not necessarily associated with equality and even where no specific equal treatment provisions exist, thereby diversifying the forms of equality promotion within the EU (see Timmer and Muir, Davio and van der Meulen). Against this background, it is unsurprising that the CJEU increasingly relies on economic instruments to achieve equality objectives in favour of LGBTIQ individuals, as observed by Baillet. This trend is particularly evident in the field of data protection and free movement law, where persons belonging to sexual or gender minorities were granted protection by reference to the GDPR (see Mousse and Deldits), or by relying on Articles 20 and 21 TFEU and the Citizenship Directive (see Coman, Pancharevo and Mirin), respectively.

In the case of Commission v. Hungary, among the various internal market provisions relied on by the Commission, the only one expressly granting protection to LGBTIQ persons against discrimination is Article 9(1)(c)(ii) of the Audiovisual Media Services Directive (see Baillet). Nevertheless, all the rules of primary and secondary law relating to free movement of services (i.e. those contained in the Audiovisual Media Services Directive, the e-Commerce Directive, the Services Directive and Article 56 TFEU) that Hungary violated according to the Commission sufficed to bring the case within the ambit of EU law, thus triggering the applicability of the Charter as per its Article 51(1). In this regard, AG Ćapeta recalled that any derogations from the freedom to provide services must respect fundamental rights (para. 284 with reference to the line of case law following ERT) and concluded that the Hungarian legislation contravenes multiple EU law provisions on free movement of services in an unjustified manner (paras. 277-340).

Charter-based rights

Apart from the above internal market instruments, the Commission claimed that the Hungarian rules violate the fundamental rights to human dignity (Article 1), private life (Article 7), freedom of expression (Article 11) and non-discrimination (Article 21) of the Charter. Whereas the invocation of the latter right is unsurprising, being the only one explicitly related to equality considerations, the reference to the other rights is perhaps striking. Yet, these rights have been also deployed by the CJEU in the past to grant protection to LGBTIQ persons: for instance, the Court linked the recognition of sex discrimination on the basis of transgender identity to the respect of dignity in P v. S even before the adoption of the Charter; it further recognised free movement rights of rainbow-families on the basis of Article 7 Charter in Coman and Pancharevo. Similarly, the Court ruled in NH that discriminatory statements about homosexuals in matters of employment are not covered by the employer’s freedom of expression under Article 11. The CJEU’s approach in these cases explicitly draws on the rich case law of the ECtHR which has predominantly relied on the rights to private life and freedom of expression under Articles 8 and 10 ECHR, respectively, taken separately or in combination with Article 14 ECHR on non-discrimination to ensure effective protection of LGBTIQ individuals.

In her Opinion in Commission v. Hungary, AG Ćapeta fully sided with the Commission’s position about all the alleged fundamental rights infringements. Starting with Article 21 of the Charter as the guiding provision of her argumentation, she observed that, by creating a difference in treatment between heterosexual and cisgender persons in comparison to LGBTIQ persons, the Hungarian provisions are clearly based on the prohibited criteria of sex and sexual orientation and, as such, are directly discriminatory (paras. 67-69).

Most importantly, the AG emphasised the stigmatising effects for the members of LGBTIQ minorities that result from Hungary’s legislation, undermining the very nature of the principle of equality. She noted that these effects are further aggravated due to the merging of the rules in question with those concerning the protection of children from paedophilia (paras. 73-81).

In a similar vein, by interpreting Articles 7 and 11 of the Charter in light of their ECHR counterparts, AG Ćapeta found that the contested rules interfere with the freedom of expression and information (paras. 84-93), while also severely affecting the private lives of LGBTIQ individuals through the creation of a hostile climate towards them in Hungary (paras. 94-102). Accordingly, the AG concluded that the fundamental rights restrictions in question cannot be justified pursuant to Article 52(1) of the Charter (paras. 103-133), thus giving rise to a violation of human dignity under Article 1 thereof (paras. 134-141).

Interestingly, AG Ćapeta’s analysis expressly underlines the harmful effects of the Hungarian provisions not only for the LGBTIQ community itself but also for the general public. In line with the doctrine of discrimination by association (see e.g. CHEZ), she argued that the prohibition on the provision of or access to LGBTIQ content affects natural and legal persons in general (e.g. any service provider or service recipient), regardless of the victims’ belonging to sexual or gender minorities (paras. 66 and 72). This confirms that, contrary to the ECtHR’s findings on Article 14 ECHR in the similar case of Macatė v. Lithuania (see para. 221 and dissenting opinion), Article 21(1) of the Charter captures discriminatory restrictions on pro-LGBTIQ content as such.

Similarly, in the AG’s view, the interference of the contested rules with the freedom of expression concerns anyone wishing to impart or receive pro-LGBTIQ information (paras. 88-89) and results in breaching the dignity of anyone who is prevented from treating LGBTIQ persons equally with the rest of society due to the prohibition at issue (para. 138). By highlighting these broader societal implications of the Hungarian legislation, AG Ćapeta clarified that such serious and systemic discrimination against certain minority groups in a given Member State amounts to an overall deviation from the EU’s constitutional model of society as expressed in Article 2 TEU (paras. 155-157 and 265), thus linking the fundamental rights infringements at issue with the breach of EU values discussed subsequently in her Opinion.

Article 2 TEU values

Turning to Article 2 TEU, the question whether it can be used as a self-standing ground of infringement of EU law goes beyond the scope of my present analysis. What is worth noting, though, is that Commission v. Hungary constitutes the very first discrimination dispute relying on the Treaty provision on EU values. This is all the more remarkable given that the level of protection granted to LGBTIQ rights largely differs among Member States, thus raising the question whether the prohibition of discrimination against sexual and gender minorities can be plausibly considered a “common” EU value at all (see Bonelli and Claes).

Although AG Ćapeta acknowledged the sensitive and contested nature of LGBTIQ equality for some European societies (paras. 83, 259, 263-264), she emphatically argued that disrespect and marginalisation of an entire societal group are “the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights” (para. 262). In her view, the prohibition of discrimination on grounds of sex or sexual orientation constitutes a choice that is “firmly rooted in the EU constitutional framework”, as expressed in Articles 21 of the Charter and 19 TFEU. Thus, the question is not “if” equality on those grounds should be guaranteed, but rather “how” – with its implementation potentially varying among different Member States (paras. 82 and 263). Consequently, by reflecting the idea that members of the LGBTI community are “an unwanted part of society”, the Hungarian legislation at issue results in “negating” the values of Articles 2 TEU, as specified by the fundamental rights of Articles 1, 7, 11 and 21 of the Charter which she deemed violated (paras. 265-271).

Never before had a violation of the Charter’s right to non-discrimination been found to contravene the values of equality, tolerance and human dignity set out in Article 2 TEU (para. 268). This development seems to build upon the CJEU’s obiter dictum in Hungary v. Parliament and Council (paras. 157-158) stating that the scope of the values of equality and non-discrimination is defined by Articles 20 and 21 of the Charter as well as by Articles 10 and 19(1) TFEU. Moreover, it is well-established case law that the principle of equal treatment enshrined in Article 20 of the Charter constitutes a general principle, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression (see e.g. Glatzel, para. 43). Taken together, one may conclude that the AG’s findings in Commission v. Hungary mark the apex of the constitutionalisation of equality and non-discrimination within the EU legal order – they are now clearly utilised not only as general principles, but also as judicially enforceable values.

Conclusion

As now fully endorsed by AG Ćapeta, the “disguised” discrimination case against Hungary seeks to protect LGBTIQ people through the back door, bypassing ingeniously the restrictive scope of the EU Equality Directives. Should the CJEU uphold this approach, the same tools could be also deployed to tackle other forms of blatant and generalised State actions against the LGBTIQ community, such as Hungary’s recent legislative ban on Pride parades. As such, Commission v. Hungary constitutes yet another notable example of the recent judicial trend observed above: EU non-discrimination and equality law appears to progressively concede its role in upholding LGBTIQ rights to alternative legal instruments. This confirms that the currently existing EU rules against discrimination have reached their limit, failing to provide sufficient protection to sexual and gender minorities. Thankfully, though, different tools available under EU law prove to be an effective substitute to achieve the envisaged level of LGBTIQ equality. Under these circumstances, absent a comprehensive equality framework at EU level, the “rainbow-coloured” utopia promised by the Commission is to be inevitably sought somewhere else… over non-discrimination law.