Attila Szabó, LLM in European law, Head of Legal Aid Service, Hungarian Civil
Liberties Union
The author would
like to thank Steve Peers and Máté Szabó, HCLU’s professional director, for
their ideas for the text!
Photo credit: Tételes istentagadó,
via Wikimedia
Commons
On 5 April, Renáta Uitz
published a pinpoint
blog post on Verfassungblog about how and why Budapest Pride, which has
been held every year for 30 years in Hungary for the equality of LGBTQ+ people,
was banned. Uitz describes in detail why this is contrary to Article 2 of the
TEU and how this government action violates the European Court of Human Rights
case law. The CEU (and Royal Holloway) professor also explains how Hungary got
to this point.
I would like to add two things to this reflection. One is just brief: Hungarian
civil society organisations are committed to organising and hosting Pride
and the Mayor
of Budapest also supported the organizers, despite the categorical legal
ban, on the very same fundamental rights basis that Uitz explains: assembly and
thus standing up for LGBTQ+ rights is a fundamental right and can only be
restricted if it restricts another fundamental right. The abstract and
unscientific paedophile arguments that the Hungarian government is operating
with are not. Consequently, the restriction of rights is also contrary to the
Hungarian Fundamental Law and goes against the ECtHR case law cited by Uitz.
It is another matter that the Hungarian
legislator allowed for fines to be imposed on the basis of the face recognition
system at banned rallies, such as the Budapest Pride, which was planned to
take place despite the ban. The legal issues involved would require a separate
blog post. A very
careful Hungarian-language piece concludes that “the use of facial
recognition technology to detect and punish offences, and thus to restrict
assembly and free expression, may be objectionable on a number of points.
Although (…) the prohibition rules (Article 5 of the EU AI Regulation)
do not directly preclude the non-real-time use of facial recognition
technology, there are nevertheless a number of fundamental rights concerns
which render the use of the system unlawful. The primary avenue of redress may
therefore be to invoke these fundamental rights violations.”
My argument, which may be news to many, is that the restriction runs counter
to one of the EU’s four freedoms, the right of free movement and residence.
This is what I want to convince readers of.
Freedom of
movement: limited?
In my view, if a non-Hungarian EU citizen can enjoy the right to
participate in an LGBTQ+ rights march in every EU country then she can not
freely choose this given country.
Participation in Pride is a fundamental right that has become part of
Atlantic and therefore European culture. All EU citizens have the right to
express their support for LGBTQ+ people in any EU Member State within the
framework of Pride. If an EU citizen is not allowed to participate in Budapest
Pride because it cannot take place, he or she is not free to choose Hungary as
a place of residence, as this means that he or she cannot freely exercise in
that Member State the fundamental rights that he or she could exercise in
another Member State. So, an EU citizen who is committed to LGBTQ+ rights
cannot come to Hungary to work or study, because he cannot stand up for the
rights he could stand up for anywhere else in any city.
One might think that restrictions on freedom of movement are only
violated if hard barriers are put in place, but in my view this is not the
case. If a Member State introduces an ideological, ideological, theoretical or
even religious restriction that alienates other EU citizens from exercising
their right to move and reside freely, then that right is infringed. This is
particularly so in cases where the exercise of the right in question is
consensual in the EU or protected by human rights court decisions and other
international law standards. Participation in Pride is such a case.
In my view, this conclusion is true in all cases where an EU citizen
wishes to stay in Hungary on a long-term basis, but is discouraged from doing
so by this kind of unlawful restriction of a fundamental right, and also in
cases where an EU citizen wishes to come to Budapest specifically for Pride.
The latter case is not unprecedented either, as Budapest Pride in recent years
has hosted many EU citizens who would not otherwise have stayed in Hungary for
a longer period. So banning Pride is not only an obstacle to the free movement
of those who would like to attend such an event but cannot, but also to those
who attend a formally illegal event and face sanctions for doing so.
Based on Art 6 of Directive 2004/38, free movement also extends to
people who make short-term visits, ie to participate in an event or
demonstration. The Cowan
and Bickel and Franz
judgments show that free movement rights in the context of short-term visits go
further than entry onto the territory – ie. equal treatment as regards victims’
rights and fair trial rights respectively.
Legal bases and
arguments
The right to
freedom of movement is a cornerstone of EU law, enshrined in Article 21 of the
Treaty on the Functioning of the European Union (TFEU). Furthermore, the EU Charter of Fundamental Rights
reinforces this right, particularly Article 45, which explicitly states that
every EU citizen has the right to move and reside freely within the territory
of the Member States. Although Article 51 of the Charter says that the Charter
itself should only be taken into account in the application of EU law, I am not
arguing that the Charter should be taken into account in relation to the right
of assembly in the Member States. I say that the Charter should be taken into
account in relation to Article 21 TFEU. Indeed, the restriction on the right of
assembly restricts this EU right, guaranteed in TFEU Article 21, as follows.
The Court of Justice of the European Union (CJEU) plays a vital role in
shaping and expanding the interpretation of EU freedom of movement,
particularly in light of the EU Charter of Fundamental Rights. The CJEU
increasingly considers the Charter when assessing national measures that may
restrict freedom of movement. This means that restrictions must not only be
justified under EU law but also comply with fundamental rights.
Cases involving the
rights of LGBTQ+ individuals and their families have highlighted the CJEU’s
willingness to use the Charter to protect fundamental rights within the context
of freedom of movement. The Charter has strengthened the protection of freedom
of movement by providing a clear and comprehensive list of fundamental rights.
It has also given the CJEU a stronger basis for challenging national measures
that are deemed to be incompatible with these rights.
The Coman
and Hamilton (C-673/16) judgment helps us to understand the context. This
case dealt with the refusal of a Romanian authority to recognize the marriage
of a Romanian citizen with a US citizen, a same-sex couple, celebrated in
Belgium. The CJEU ruled that the term “spouse” in the context of EU
freedom of movement includes same-sex spouses. The Court emphasized the need to
respect the fundamental rights of EU citizens, including the right to respect
for private and family life (Article 7 of the Charter) and the principle of
non-discrimination (Article 21 of the Charter). This case significantly
expanded the rights of same-sex couples in the EU, ensuring that their family
life is protected when exercising freedom of movement.
Steve
Peers wrote about the case that “[t]he Court added that any measure
restricting free movement rights also has to comply with human rights
guaranteed by the EU Charter of Rights, which has to be interpreted
consistently with the European Convention on Human Rights. According to the
case law of the European Court of Human Rights, “the relationship of a
homosexual couple may fall within the notion of ‘private life’ and that of
‘family life’ in the same way as the relationship of a heterosexual couple in
the same situation.”
In another case (C-808/21),
the CJEU determined that EU citizenship, established by the Maastricht Treaty
and articulated in Article 20 TFEU, implies a right for EU citizens to join
political parties in other Member States, despite the absence of explicit
provisions. The Court reasoned that denying this right undermines the effective
exercise of voting rights in municipal and European Parliament elections, which
are expressly granted to EU citizens. The CJEU emphasized the principle of
equal treatment under Article 22 TFEU, stating that Member States cannot impose
conditions on non-national EU citizens that are not applied to their own
nationals. While acknowledging national identity and the Member States’
authority over national elections, the Court asserted that EU values, such as
democracy and equal treatment, limit national discretion. The Court’s rulings
enhance EU citizenship’s political rights, reinforcing its role as a
fundamental status within the EU legal order. Finally, the court linked the
right to join political parties to Article 12 of the Charter, which concerns
freedom of association.
Peers wrote
in the Verfassungblog that “remarkably, the Court links the implied
political rights of EU citizens in municipal and European Parliament elections
not only to the express rights of EU citizenship, but also to democracy and
equal treatment, as represented in Article 10 TEU and the EU’s values – putting
them at the same rank as national identity. So national identity cannot
constitute an exception to democracy or the rule of law et al – but must be
reconciled with those values.”
I think that the EU understandings, based on the ECtHR rulings, is that
restrictions on certain political freedoms are not only a violation of EU law
if they discriminate against EU citizens, but also if they restrict those
rights without discrimination. For, as I argued above, a Member State that
falls below the standards of European fundamental rights is in fact restricting
the free movement of its citizens by alienating the citizens of other States
from the freedom of movement and residence. Who would like to study in Budapest
without being able to choose to participate in the celebration of equality
according to sexual orientation? I think it can be argued that far fewer people
would do so than if this right were not restricted.
The EU’s Fundamental Rights Agency has a
more detailed collection of relevant cases.
These cases demonstrate the CJEU’s commitment to protecting fundamental
rights within the context of freedom of movement. The EU Charter of Fundamental
Rights provides a vital framework for the CJEU’s interpretation of EU law in
this area.
Obviously, the facts of these cases are different from those of the
Budapest Pride ban, but they follow a similar logical structure: that is,
national measures become relevant under EU law when, in the exercise of free
movement, they deprive an EU citizen of fundamental rights that would be
guaranteed in another Member State.
Conclusion: no
pasarán
I argue that banning Budapest Pride is not only a violation of the
Hungarian Fundamental Law, not only a violation of the European Convention on
Human Rights, not only a violation of Article 2 of the TEU, but also a
violation of the right to freedom of movement and residence. There is the same
human rights minimum without which an EU Member State cannot be considered so
free, so grounded in European values, that a citizen of any other Member State
is free to choose to travel and reside there. Member States must not violate
the privacy prohibitions on which freedom of movement and residence are based,
and they must not, in my opinion, exclude citizens of other Member States from
joining political parties by excluding everyone equally. In the same way,
Member States cannot exclude EU citizens from lawful assembly by European legal
standards. If they do so, they restrict freedom of assembly.
Of course, many things can deter an EU citizen from
moving to another Member State: from the climate, to the quality of social and
health services, to tax policy. However, fundamental rights deterrence is
different from other types of deterrence because of the Charter and the
relevance of ECtHR jurisprudence. Denial of fundamental rights, on the other
hand, carries a normative message: ‘You cannot exercise certain fundamental
rights here’. And it is no longer a matter of preference for the person, but of
the exercise of his or her citizenship status. It is up to the Court of Justice
of the European Union to work out the yardstick for this.