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How The EU Is Using The 'Free Market' To Target Hungary

Hungary’s LGBT laws are being challenged by the European Commission in the Court of Justice. The Commission claims that Hungary is in violation of several common market provisions of E.U. law.

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(Alexandros Michailidis/Shutterstock)

In the immediate aftermath of the Hungarian elections earlier this year, which saw Prime Minister Viktor Orbán’s Fidesz party win another two-thirds majority in parliament, I interviewed Balázs Orbán, one of the prime minister’s top advisors and now a member of the National Assembly of Hungary.

“Progressives will eventually make you choose,” Balázs told me. “You cannot have two flags. They force you to choose your national flag or the rainbow flag—and you have to choose the rainbow flag. Because if you choose the national flag, you are a bad person.”

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It seems the European Union thinks now is the time for Hungary to choose. The European Commission, the executive arm of the E.U. headed by a few appointed bureaucrats who are propped up by more than 20,000 other administrative lemmings, has filed a lawsuit to the Court of Justice of the European Union over laws that forbid the promotion of LGBT materials to children.

This is the first time the European Commission has gone forward with a lawsuit to the Court of Justice for a member state’s laws regarding LGBT issues—and it’s partly drawing on E.U. law pertaining to the common market to do it. In the Commission’s July 2022 infringements package, the Commission said Hungary’s laws are in violation of “the internal market rules, the fundamental rights of individuals (in particular LGBTIQ people) as well as—with regard to those fundamental rights—the EU values.”

Rest assured, “the protection of children is an absolute priority for the EU and for its Member States,” the Commission claimed. “However, the Hungarian law contains provisions which are not justified on the basis of promoting this fundamental interest or are disproportionate to achieve the stated objective.”

Gladden Pappin, an associate professor of politics at the University of Dallas and visiting fellow at Budapest’s Mathias Corvinus Collegium, told The American Conservative, “The European Commission objects to those portions of Hungary’s law that protect underage minors from content promoting alternative sexual lifestyles. The E.U. is defending exactly what most parents find objectionable—the foisting of sexual content on minors by more and more modern cultural institutions, from schools to Disney. Hungary is drawing a reasonable line in the sand and the Commission’s attempt to make an example out of Hungary will eventually backfire.”

The Commission’s referral to the Luxembourg-based court is indeed a drastic action, but not entirely unexpected. In July 2021, the Commission issued Hungary a letter of formal notice as part of the European Union’s infringement procedures.

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To no surprise, Hungary’s justifications for the law, “did not sufficiently respond to the concerns of the Commission in relation to equality and the protection of fundamental rights.” Hungary’s response, from the Commission’s perspective, got even more brazen when it “did not include any commitment to remedy the incompatibility.”

The European Commission then published a “reasoned opinion” on December 2, 2021, as part of that month’s infringement package. The issue taken with Hungary’s LGBT laws were segmented into two sections.

The first dealt with Hungary’s decision to have a pro-LGBT children’s book include a disclaimer that tells parents the book their child is about to read portrays “behaviour deviating from traditional gender roles.” The Commission argued:

By imposing an obligation to provide information on a divergence from ‘traditional gender roles', Hungary restricts the freedom of expression of authors and book publishers (Article 11 of the EU Charter of Fundamental Rights); discriminates on grounds of sexual orientation in an unjustified way (Article 21 of the EU Charter of Fundamental Rights), and incorrectly applies the EU rules on unfair commercial practices (Directive 2005/29/EC).

The second focused on Hungary’s efforts to limit minors’ exposure to inherently sexual LGBT content. Hungary’s ban on “so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality,'” according to the Commission, runs afoul all sorts of E.U. laws, such as the Audiovisual Media Services Directive, the e-Commerce Directive, and Articles 1, 7, 11 and 21 of the E.U. Charter of Fundamental Rights.

The press release of the aforementioned referral to the Court of Justice on July 15, 2022, added that Hungary’s laws also violated the Treaty principle of freedom to provide services, the Services Directive, the Single Market Transparency Directive, and E.U. laws on data protection.

It’s somewhat expected that the Commission would fall back on the E.U. Charter of Fundamental Rights or the Treaty on European Union to make the case that Hungary is somehow violating the rights of LGBT individuals. Much more curious, however, is the Commission’s reliance on aspects of the single market to make their case against Hungary’s LGBT laws. As I’ve argued before in the pages of TAC, the E.U., even in its earliest iterations, was a liberal cultural project that saw the market as the means to establish, expand, and enforce the bloc’s liberal values.

This piece would become too convoluted if we broke down every single one of these lengthy portions of E.U. law that the Commission claims Hungary has violated. This is by design. The European Union’s body of laws and processes, much like America’s administrative state, are designed to put those who seek to challenge the status quo on their heels. The house always wins.

Nevertheless, let’s take just one of the directives the Commission believes Hungary’s LGBT laws violates as an example. According to the Commission, the Hungarian LGBT laws violate the e-commerce directive, specifically its country-of-origin provision. The country-of-origin provision, also known as the Single Market clause, comes from Article 3 of the e-commerce directive and says that online service providers are subject to the laws of the E.U. member state where the company is established, rather than where end users may be accessing the online service provider’s products or content. Therefore, if a company that provides online communications services is based in Paris, but a company in Munich wants to use their service, then the Paris-based corporation is accountable to French law, the legal code of its domicile, and not that of Germany.

But if a country, in this case Hungary, wants to make a law that limits or prohibits an online service provider from conducting business in Hungary, it must follow a lengthy, multi-lateral process in order to make such a law. First, Hungary has to contact the authorities of other member states where these online service providers reside and encourage them to take action on its behalf. If that fails, then Hungary must notify the relevant member states, as well as the European Commission, of what Hungary intends to do to solve the problem. Hungary must convey that the law is for the protection of order, security, public health, or consumer protections, and must demonstrate that the law is proportionate to its stated goals. The Commission then chooses whether to approve of the action or not, and pursue action against Hungary if it refuses to follow the Commission’s decision.

In the Commission’s July 15, 2022, press release of its decision to refer the issue to the Court of Justice, the Commission claimed Hungary’s LGBT laws violated the e-commerce directive because “the law restricts the provision of services displaying content portraying different sexual orientations to minors, including when these services originate from other Member States, and Hungary failed to justify these restrictions.”

In other words, Hungary is devoid of all sovereignty, even when it comes to what Hungarians believe their children should or should not be exposed to. For the E.U. and its institutions, the common market is a jurisdictional mechanism to strip sovereignty away from any country that balks at the next wave of historical progress, be they Hungarians, Poles, Italians, or Maltese.

As European Commission President Ursula von der Leyen told the European Parliament on July 7, 2021, “Europe will never allow parts of our society to be stigmatized: be it because of whom they love, because of their age, their ethnicity, their political opinions, or their religious beliefs.”

Preventing those parts of society from being stigmatized, and to destigmatize others, requires their full affirmation, first in the market, then in the culture. The E.U. and other neoliberal institutions that rose in tandem have reduced all matters of nature, politics, and humanity to market forces under the guise of protecting “free markets.” Neoliberal institutions have given themselves carte blanche authority to act not only wherever a market does exist, but wherever one could exist, and are compelled to create lengthy and opaque laws to ensure the “free market” functions. These institutions may feign neutrality, but the elevation of liberalism over the sovereignty of a nation’s people or the wellbeing of its children is just about as far away from neutrality as one can get.

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