Drawing the line on the Union’s values: Commission v Hungary (C-769/22) and the (queer) politics of LGBTQ+ rights in the EU. Assessing the promises and uncertainties of the self-standing article 2 TEU

Abstract

In 2021, the Orbán-led government adopted an anti-LGBTQ+ law prohibiting the promotion and portrayal of LGBTQ+ content across several domains in the name of child protection. Against the background of sixteen years of constitutional backsliding in Hungary and a contrasting expansion of LGBTQ+ protection at EU level, the European Commission initiated an infringement action before the Court of Justice, invoking not only secondary EU law and Charter rights but, most significantly, a breach of Article 2 TEU, containing the core values of the Union. This thesis examines the resulting landmark judgment, Commission v Hungary C-769/22, through a dual methodology, combining a doctrinal analysis with Queer Legal Theory as a critical lens. It traces the Court’s argumentative logic in earlier LGBTQ+ case law together with the political developments in Hungary leading up to the anti-LGBTQ+ law. The thesis further reveals the fundamental rights dimension underlying the Court’s reasoning on secondary law and Charter rights and addresses the novelties, uncertainties and questions raised by the first-ever finding of an Article 2 TEU breach. The analysis is completed by adding a political dimension to assess the paradoxical effects this judgment generates and the queer experiences that remain unaddressed within a rights-protective framework.