In its recent judgment of 21 April 2026 (C-769/22 Commission v Hungary), the Court of Justice of the European Union (CJEU) held that Hungary’s Act LXXIX of 2021 (“on taking stricter action against paedophile offenders and on amending certain laws for the protection of children”) was in breach of EU law, in particular the Union’s foundational values under Article 2 TEU and a range of Charter rights, including non-discrimination and freedom of expression. The ruling brings into focus both the political, legal and moral project embodied in the law under Viktor Orbán, and the imprecise and ideological communication of the Court itself, as it engages with the effects and conceptual structure of a bad law.
A high-visibility move to corner the opposition
The 2021 Hungarian “child protection” law did not emerge in a vacuum. It was a political instrument deployed in a highly polarised domestic context. In the run-up to the 2022 elections, Hungary’s fragmented opposition was attempting to unite, bringing together actors from across a broad and often conflicting political spectrum. By combining measures on paedophilia with restrictions on the “portrayal or promotion” of homosexuality and gender identity, the government effectively narrowed the available political space. The opposition faced a constrained set of choices: support risked alienating liberal and international allies, while opposition opened the way to accusations of indifference to child protection. This dynamic strengthened Orbán’s position and allowed disagreement to be portrayed as complicity or weakness.
Criminal law, child protection and content regulation
The Act was not a single, self-contained law but a composite legislative package: it introduced new criminal-law provisions targeting paedophile offences while simultaneously amending a range of existing statutes, including the Child Protection Act, the Media Act, the Public Education Act and the Advertising Act. Into these frameworks, it inserted restrictions on content accessible to minors that “portrays or promotes” homosexuality (homoszexualitás), sex change (a nem megváltoztatása) and a gender identity different from one’s birth sex (születési nemtől eltérő nemi identitás), on the grounds that such content is detrimental to the physical, mental and moral development of minors and may therefore be limited or prohibited.
The conflation of homosexuality and gender identity in the law mirrors the “LGBTIQ+” framing employed across the debate – whether by Orbán or the CJEU, and more generally by European institutional actors and transactivist civil society organisations. On both sides, distinctions that are legally, socially and politically significant become blurred and increasingly difficult to disentangle. Despite ongoing efforts by advocacy groups such as LGB Alliance and others to highlight the internal contradictions and the harms of gender identity dogma to lesbians and gays within this “queer” umbrella, the categories are continuously treated as connected and interchangeable, leaving little room to distinguish between the irreversible harms of medical transition in youth and the experience of homosexual teenagers coming out and forming relationships.
A moral claim against core democratic freedoms
Hungary already had a comparatively robust framework for the protection of minors in place prior to the contested law, operating across several levels of regulation. The 1997 Child Protection Act provided a comprehensive basis for safeguarding children, including mechanisms for intervention where their welfare was at risk. This was complemented by media regulations and classification systems, comparable to age-rating regimes in other EU Member States, under which the national media authority was already empowered to sanction content deemed harmful to minors. In addition, the Criminal Code had long provided strict penalties for offences against the sexual integrity of minors. Child protection was neither unregulated nor neglected, raising questions about the necessity and added value of the 2021 legislative intervention.
What it did introduce, however, were new measures on the registration and handling of data of sexual offenders against minors, creating a more extensive system of record-keeping and setting out rules on who may access such data, including beyond law enforcement authorities. While these provisions fall within a more conventional understanding of child protection, they were not entirely uncontroversial. The CJEU did not challenge the objective of strengthening monitoring as such, but it did raise concerns about the design of the data regime, particularly its compatibility with EU data protection law under the relevant framework (including principles of necessity, proportionality and purpose limitation). The Court questioned whether the scope of access to and disclosure of personal data went beyond what is strictly required for the protection of minors, thereby bringing even these ostensibly protective elements within the ambit of fundamental rights scrutiny.
But the central problem with the 2021 Act lies in its ideological overreach. By extending the language of child protection, and bundling these provisions into a framework addressing sexual offences against children, to cover the “portrayal or promotion” of homosexuality (and gender identity), the law moves beyond the protection of minors in any conventional sense and into the shaping of the public sphere.
Key terms such as “portrayal” or “promotion” were left undefined, creating a climate of legal uncertainty for those operating across a wide range of societal sectors. Media outlets, publishers, educators, advertisers, event organisers and advocacy groups are left to anticipate what might fall within the scope of restriction, encouraging caution and, in some cases, self-censorship. The potential reach of the law extends into multiple domains: media and content creation, the arts, cultural or public events, and the activities of civil society organisations. In practice, this can include booksellers becoming reluctant to display classics of world literature, Pride marches being banned, or support for lesbian and gay adolescents coming out being restricted. At this point, the law intersects directly with core democratic freedoms: freedom of expression, freedom of assembly and the freedom to form associations.
It also raises a question of legislative necessity. Similar measures could have been introduced through technical regulation or administrative guidance. The choice of a high-profile legislative vehicle ensured maximum visibility and, being a parliamentary act, compelled reaction. In this sense, the law also functioned as a provocation, inviting external criticism that could then be recast domestically as an attack on Hungarian values and sovereignty.
Prohibiting “promotion”
The Hungarian approach has clear precedents. In Russia, the 2013 federal law banning so-called “propaganda of non-traditional sexual relations” to minors was upheld domestically and later challenged before the European Court of Human Rights, which in Bayev and Others v. Russia (ECtHR, 20 June 2017) found it to violate freedom of expression and to be discriminatory. Despite this judgment, the law remained in force and was subsequently expanded in 2022 to cover all age groups, contributing to a significantly more restrictive environment for public expression and organisation. In Lithuania, provisions in the Law on the Protection of Minors against the Detrimental Effect of Public Information were challenged in Macatė v. Lithuania (ECtHR, 23 January 2023), where the Court held that restricting a children’s book depicting same-sex relationships violated Article 10 ECHR (freedom of expression).
Similar approaches can also be found in earlier European contexts. In the United Kingdom, Section 28 of the Local Government Act 1988 prohibited local authorities from the “promotion of homosexuality”, particularly in educational settings; it was repealed in 2003 (and earlier in Scotland in 2000). In Austria, provisions of the Criminal Code such as § 220, prohibiting the “promotion of homosexuality”, and § 221, restricting the public association and organisation of homosexual groups, remained in force until they were repealed in 1997. The use of law to regulate the public presence of homosexuality is neither new nor unique, even if its contemporary forms differ in structure and justification.
In the case of Hungary, the result is a law whose design makes sober debate difficult from the outset, and a judgment that, in responding to it, raises its own questions about the boundaries between legal reasoning and ideological framing.
This becomes particularly apparent in the Court’s language and conceptual approach. By relying on Article 2 TEU as a broad, value-based standard, the CJEU risks turning the Union’s foundational principles into an open-ended basis for intervention in areas that remain primarily within Member State competence, such as education or aspects of family law. This raises concerns about the limits of judicial authority. At the same time, grounding the reasoning in expansive and contested value concepts risks eroding the perception of the Court as a neutral arbiter, and instead casts it as an actor advancing a particular normative direction.
More significantly, however, a judicial body – particularly one at the level of the CJEU – risks weakening the perception of its neutrality when it adopts terminology closely associated with a specific, in this case transactivist, socio-political current, such as “non-cisgender persons” or “the right of a person to gender identity”. This can, and likely will, affect how the reasoning is received. The increasing use of concepts that do not originate in established legal doctrine but in more recent academic or activist discourse can carry a strong signalling effect. By incorporating such terminology into its official reasoning, the Court may be seen as implicitly endorsing a particular conceptual framework, thereby pre-empting debates that remain unsettled across Member States. The choice of language itself becomes part of the controversy, shaping the broader perception of judicial authority. The Court’s criticism of Hungary for poor legislative technique, while itself relying on expansive and contested terminology, leads to a remarkable symmetry and to a dispute that looks less like a legal clarification than a broader cultural conflict carried into the courtroom.
Restoring clarity – both in legislative drafting and in judicial communication – becomes essential to maintaining trust in the legal process.
Whether the CJEU’s judgment will have any practical effect remains to be seen – whether the new Hungarian government under Péter Magyar, due to take office in May 2026, will repeal the law, and whether the European Commission will take enforcement action against Hungary. Until then, much water may flow down the Tisza.