Yesterday, the CJEU arguably did the right thing on a Tuesday when it handed down its judgment in Case C-769/22 “Commission v Hungary” on Hungary’s infamous “law on taking tougher action against child sex offenders and on child protection,” marketed as the so-called “child protection law”. In this post, I highlight the perhaps less salient aspect of the case, one where the GDPR and Charter of Fundamental Rights were both invoked by the Court.
Whether or not the timing of the judgment is coincidental coming just a little over a week following the so-called “critical election” in Hungary is something only those more familiar with the Court’s internal procedures would be able to tell. But when it comes to the possibility of the prompt implementation of the judgment, the odds have never before been as favourable as they presently are. As I try to do on this blog, I’ll steer clear of the immediate (electoral) political context, this time from “the country I know best”.
Already by now, reflections on the historical significance of the ruling have been numerous. This is the first case in which the CJEU has identified a separate infringement of Article 2 of the Treaty on European Union—i.e., the foundational values of the EU—“respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”
The significance of this milestone in EU jurisprudence, but also arguably in the European integration project, cannot be overstated. I will, however, not try to do justice to this development, only to note that this part of the ruling is based on the serious discrimination the law imposes against individuals based on their sex and sexual orientation. This includes, but is not limited to, the deeply problematic conflation of LGBTQI+ individuals with child sex offenders (paedophiles).
An equally interesting finding of the Court is the link to the GDPR, and through it, data protection as a fundamental right. According to the judgment, the so-called “child protection” law
“has amended the Law on the Criminal Records System in order to widen access to information registered in the criminal records system concerning persons who have committed offences abusing the sexual freedom or sexual morality of children. Although such access may be lawful in certain circumstances, the Court finds, in essence, that the Hungarian legislation does not provide a sufficiently precise definition either of the persons authorised to access criminal records data or of the substantive conditions for access necessary to offer appropriate safeguards for the rights and freedoms of the persons whose data are concerned.“
Importantly, the Court also frames this finding as a fundamental right infringement—including by explicitly referencing the right to the protection of personal data (Article 8 of the Charter of Fundamental Rights of the EU).
Without offering too much commentary, it is clear that this part of the ruling pertains to a different group of individuals (i.e., convicted child sex offenders) than the ones who have suffered the other fundamental rights infringements listed in the judgment (i.e., LGBTQI+ persons). The issue raised here is that Hungary’s Law on the Criminal Records System, also amended by the so-called “child protection law”, allows for an overly broad and poorly defined access to the criminal records of child sex offenders, which stands in stark contract with the specific purposes and data minimisation principles of data protection law.
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It is now widely considered that the so-called “clemency scandal” of 2024—leading to the resignation of the Hungarian president and justice minister, but not any of those responsible for the granting of a pardon to a person who abetted a child sex offender—ultimately paved the way to the critical election referred to above.
Paedophilia, and the outgoing Hungarian government’s poor handling of a sequence of revelations on serious failures of the state child protection system, has since remained a salient issue in Hungarian public discourse, inuding during the recent election. It will be interesting to observe how, if at all, against this backdrop, the CJEU’s finding on the criminal records system will be thematised. At this point in time, this part of the debate seems to be missing.
The Right Thing on Tuesday 