Case Summary and Outcome

The Advocate General of the Court of Justice of the European Union considered, in an independent opinion, that several provisions of Hungary’s 2021 “protection of children” amendments violated European Union law, including the right to freedom of expression and information guaranteed under Article 11 of the Charter of Fundamental Rights of the European Union. These amendments restricted minors’ access to content promoting or portraying “gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality.” The European Commission challenged the law, arguing it was discriminatory and unlawfully restricted freedom of expression. The Advocate General found that the measures were discriminatory as they restricted “LGBTI content” while allowing heterosexual or cisgender content. The opinion further held that the restrictions unjustifiably interfered with freedom of expression and information without evidence that such content caused any harm to minors.

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Facts

On June 15, 2021, the Hungarian legislature adopted the “Law LXXIX of 2021 adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children,” which subsequently took effect on July 8, 2021.

This Amending Law introduced eight specific amendments altering six national legislations:

Rule 1 amended the Child Protection Law to prohibit portraying or promoting “LGBTI content” (as referred by the Advocate General) to minors. The amendment prohibited making “pornographic [content] that depicts sexuality or that promotes or portrays gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality” accessible to people below 18 years.

Rule 2 amended the Electronic Commerce Law to “empower a body called the Internet Roundtable for the Protection of Children to take certain measures with regard to providers of electronic services.”

Rule 3 amended the Advertising Law, prohibiting “advertisement that depicts sexuality in a gratuitous manner or that promotes or portrays gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality” accessible to people below 18 years.

Rule 4 amended the Media Law, ordering that programmes be classified into category V “if they are capable of exerting negative influence on the physical, mental or moral development of minors, in particular as a result of their focus on violence or the promotion or portrayal gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality or the direct, naturalistic or gratuitous depiction of sexuality.” As per the amendment, these programmes will be considered inappropriate for people below 18 years and can only be televised late at night—between 10.00 p.m. and 5.00 a.m.

Rule 5 amended the Media Law and imposed certain obligations on the Media Council.

Rule 6 also amended the Media Law regarding non-commercial announcements, stating, “Programmes shall not qualify as public service announcements or community facility advertisements if they are capable of exerting negative influence on the physical, mental or moral development of minors, in particular as a result of their focus on the gratuitous depiction of sexuality, pornography, the promotion or portrayal of divergence gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality.”

Rule 7 amended the National Public Education Law regarding sexual education, dictating that: “In the conduct of activities concerning sexual culture, sexual life, sexual orientation and sexual development, special attention shall be paid to the provisions of Article XVI(1) of the Fundamental Law… Such activities cannot be aimed at the promotion of gender identities that do not correspond to sex assigned at birth, sex reassignment or homosexuality.”

Rule 8 amended the Law on the criminal records system.

On December 2, 2021, the European Commission issued a reasoned opinion highlighting that the Amending Law violated European Union (EU) law and invited Hungary to take necessary steps to avoid such breaches. On February 2, 2022, Hungary replied, reiterating that its laws complied with EU law.

On December 19, 2022, the European Commission filed the present application before the Court of Justice of the European Union (CJEU). In 2023, sixteen Member States and the European Parliament were granted leave to intervene in the present case and support the European Commission.

On June 5, 2025, the Advocate General of the Court of Justice of the European Union issued an independent opinion on the matter for the CJEU to consider.

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Decision Overview

Advocate General Tamara Ćapeta of the Court of Justice of the European Union delivered this opinion. The main issue before the Advocate General was whether the Hungarian amendments, which restricted content dealing with LGBTI themes, violated the Charter of Fundamental Rights of the European Union.

The European Commission argued that the amendments violated articles 1 (human dignity), 7 (respect for private and family life), 11 (freedom of expression and information), and 21 (non-discrimination) of the Charter and that exposing minors to ‘LGBTI content’ does not harm their development; on the contrary, shielding children from such content can actually be harmful and severely stigmatizing. The Commission asserted that the amendments directly discriminated by restricting “LGBTI content” while freely allowing heterosexual content.

Hungary argued that the amendments were necessary to protect the development of minors from the potential harm of exposure to LGBTI content.

The Advocate General examined whether the amendments infringed Article 21 of the Charter, which guarantees the right to non-discrimination. She argued that the amendments constituted a form of discrimination based on sex and sexual orientation because they restricted minors’ access to content portraying the ordinary and everyday lives of the LGBTI community, rather than merely targeting “openly sexual or pornographic” material. [para. 68]

In evaluating Hungary’s argument that Rule 7 was intended to restrict “LGBTI content” in the sexual education context, the Advocate General held that the rule was directly discriminatory because it exclusively prohibited “LGBTI content” while allowing heterosexual or cisgender content. The Advocate General agreed with the Commission that the prohibition was harmful and stigmatizing—both to children and adults, as the rules restricting “LGBTI content” were merged with amendments aimed at protecting children from pornographic material and paedophilia.

In assessing the infringement of Article 11 of the Charter on the right to freedom of expression and information, the Advocate General rejected Hungary’s defence that the rules applied only to certain methods of sharing information. Drawing on established human rights principles, it was reiterated that “freedom does not protect only the sharing of ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also of those that offend, shock or disturb; such are the demands of the pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’” [para. 87]

The Advocate General concurred with the Commission that Rule 4, which restricted the broadcasting of “LGBTI content” to late hours, was unlawful because it restricted both the creators’ ability to share their ideas and the general public’s right to receive them. Additionally, Rule 3 was considered to clearly interfere with commercial speech in advertising.

The Advocate General also determined that the legislation infringed Article 7 of the Charter, which protects the right to respect for private and family life. She opined that the rules had a severe stigmatizing effect that fostered hostility and directly harmed the “identity, self-esteem, and self-confidence” of LGBTI individuals. [para. 99] The Advocate General highlighted that minors in the LGBTI community were especially harmed since erasing representation from the public sphere stopped them from recognizing that their lives are not abnormal. According to Ćapeta, this lack of representation negatively impacted their social acceptance among peers and their “private social life.” [para. 99] Ultimately, rather than shielding minors from harm, the Advocate General concluded that the amendments actually increased the harm inflicted upon children.

Upon evaluating whether these interferences with fundamental rights could be justified, the Advocate General looked at whether they protected a general interest and were proportionate. Ćapeta observed that although the precautionary principle could be invoked to restrict material posing a “risk of harm for minors’ development,” it cannot rely on purely hypothetical risks without scientific evidence. [para. 108] The Advocate General held that Hungary provided absolutely no proof that exposure to “LGBTI content” caused harm to minors.

Consequently, the Advocate General presented two main conclusions: either Hungary entirely lacked a valid general interest to justify the interference due to the absence of proof—and no proportionality test was even required to assess the validity of the amendments—, or there was a valid reason to protect the development of children, but the rules failed the proportionality test since banning such content was not an adequate or necessary method to protect children. In either scenario, the interference was deemed unjustified by the Advocate General.

The Advocate General also rejected Hungary’s argument that the contested legislation was justified by the need to safeguard parents’ rights to raise children in accordance with their own convictions.

Finally, Ćapeta assessed the infringement of Article 1 of the Charter, which establishes human dignity as the basis for all other fundamental rights. Because Hungary failed to provide any acceptable justification for violating the rights to non-discrimination, freedom of expression, and private life, the Advocate General ruled that the amendment inherently violated the dignity of LGBTI individuals.

The Advocate General concluded that the amendments, including Rules 1, 3, 4, 6, and 7, violated Articles 1, 7, 11, and 21 of the Charter. She further determined that Hungary violated Article 2 of the Treaty on European Union (TEU) because the amendments undermined human dignity, a core value of Article 2.

The Advocate General concluded that the amendments were contrary to the Audiovisual Media Services Directive (AVMS), wherein Article 6a “requires Member States to take appropriate measures in order to protect the physical, mental or moral development of minors. Those measures may consist in limiting the time of broadcast, and must be proportionate to the potential harm of the programme. If the programme respects the rules aimed at the protection of minors in the home State, it should be freely transmitted to the territory of any other Member State.” [para. 280]

The Advocate General held that Rule 4 could not be interpreted as the implementation of Article 6a because Hungary did not provide scientific proof that “LGBTI content” harmed minors. Similarly, Rule 6 violated Article 6a because it unjustifiably and discriminatorily applied the same strict classification rules to non-commercial speech, including public interest announcements—thereby restricting awareness-raising messages about events such as a pride parade without a valid reason. Furthermore, the Advocate General found that Rule 3 and Rule 5 were also contrary to the AVMS directive.

To conclude, the Advocate General considered that Rules 1, 3, 4, 6, and 7 violated Articles 1, 7, 11, and 21 of the Charter of Fundamental Rights of the European Union and Article 2 of the Treaty of the European Union, and Rules 3, 4, 5, and 6 were contrary to the Audiovisual Media Services Directive.

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