The European Court of Justice’s ruling against Hungary in April has been described by several observers as a constitutional breakthrough for the European Union. The ruling invalidated the Hungarian legislation that restricted the exposure of explicit sexual content to minors. However, according to legal experts, it’s not just the specific law at stake. The decision could also mean that the EU’s “common values” are given greater weight than the national identity of member states – with far-reaching consequences for political freedom of action in Europe.
The Grand Chamber of the European Court of Justice ruled in April that Hungary’s child protection law from 2021 is in violation of EU law. The law restricted content depicting explicit LGBTQI+ sexual content for children in schools, advertising, and media, among other areas.
The court found that the rules contravened several aspects of EU law, including provisions on audiovisual media services and e-commerce. But the decision also contained something that several legal commentators describe as significantly more fundamental and potentially far-reaching.
Article 2 in Focus
For the first time, the European Court of Justice held that the fundamental values stated in Article 2 of the EU Treaties can be invoked as an independent legal basis. Article 2 specifies that the Union is founded on values such as respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. According to the treaty, these values must be common to all member states.
Associate professor Joakim Zander at Lund University describes the ruling as a decisive crossroads in the EU’s constitutional development, where what was previously a broadly formulated value base has now been narrowed down politically and made legally binding.
“This has major legal consequences, as it opens a completely new avenue for the European Commission to challenge member states’ national policies if they breach values such as freedom, democracy, equality, the rule of law, and respect for human rights,” he writes in Europakommentaren.
According to Zander, the ruling means that the European Court of Justice has clearly established that the Union is ultimately a community of values, not merely an economic and legal cooperative order. This signifies a further, substantial shift in power towards Brussels at the expense of member states’ sovereignty.
National Identity Subordinate to EU Values
One of the most noted parts of the decision concerns the relationship between member states’ national identity and the EU’s common value base.
Hungary argued during the proceedings in Brussels that Article 4.2 of the EU Treaty, which requires the Union to respect member states’ national identities, gave it some space to shape its own policy in this area. However, that argument was rejected by the court.
According to Zander’s analysis, the court established that national identity may only be invoked insofar as it is compatible with the fundamental values expressed in Article 2. Thus, a hierarchy arises among treaty provisions, with Article 2 occupying a superior position with binding authority.
This interpretation means member states cannot refer to national traditions, cultural features, or political priorities if they are deemed to be in conflict with values the EU Court considers to follow from Union law. All such matters can now become legal cases for Luxembourg to decide on behalf of Brussels.
From Political to Legal Review
Previously, questions regarding member states’ compliance with EU’s fundamental values were mainly handled through the political process provided in Article 7 of the EU Treaty. That process requires very broad political support among member countries and has therefore proved difficult to use for those wishing to restrict national democracy.
According to Zander, the European Court of Justice has now opened an alternative route, enabling the Commission to instead pursue legal action through infringement proceedings. The court simultaneously emphasized that not every deviation from Union law automatically constitutes a breach of Article 2. According to the court’s reasoning, it is primarily “obvious and particularly serious violations” that can be subject to such review.
Nevertheless, several commentators believe the decision marks a significant shift in power. Questions that could previously be resolved mainly through national democratic processes now risk, to a greater extent, being made the subject of legal scrutiny and review at the European level.
Debate over Political Consequences
The decision is therefore likely to have significance far beyond Hungary. The Hungarian law had strong support among the country’s conservative voters and was justified by the government as a means of protecting children from explicit sexualized content. Similar arguments are found in political debates in other European countries, where many parents believe that questions about children’s exposure to sexuality and gender identity should be decided nationally.
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At the same time, the EU Commission and the EU Court considered the legislation incompatible with the Union’s fundamental values and the rights of sexual minorities. If the legal interpretations now being advanced are correct, the decision means that the political space for member states to pursue more conservative value-based policies decreases, while the left-liberal value base that dominates at the EU level is given stronger legal standing.
Critics therefore see a risk that issues previously decided through national elections and parliamentary majorities will increasingly be defined as legal matters, where the scope for political divergence is limited.
A Decision with Historic Ambitions
Joakim Zander is among those who welcome the development, describing the ruling as historic in replacing member states’ national identities with a common EU identity.
“It is impossible to overstate the significance of the [Union values] ruling. By clearly and convincingly confirming that the fundamental values expressed in Article 2 TEU constitute the very identity of the EU and can be reviewed directly by the court, it is clear that the EU’s core is its fundamental values. This is a hopeful basis for building a common European identity.”
The European Parliament’s office in Sweden also applauds that Brussels’ values now legally trump those of member states. They are therefore inviting journalists, opinion-makers, and others interested to a lecture to learn what you now must comply with in your activities in order not to violate the EU Court’s ruling.
Not everyone is as enthusiastic about such an extensive further shift of power towards Brussels and the restrictions on national self-determination within the Union. For supporters, the ruling is a protection for fundamental rights and democratic principles. But for critics, it marks a significant step forward towards an EU where member states’ ability to choose their own political path becomes increasingly limited, and where many argue that Brussels should instead take one or more steps back.
Regardless of one’s perspective, one thing seems clear – the European Court of Justice’s decision in the case against Hungary concerns far more than a single national child protection law.
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