The Case at a Glance

On 19 December 2022, the European Commission brought infringement proceedings before the Court of Justice of the European Union against Hungary (C‑769/22), challenging its so-called “anti-LGBTI law” – “Law LXXIX of 2021 on stricter measures against paedophilia and amending certain laws for the protection of children”. This legislative package restricts LGBTI content in media and advertising, censors inclusive sex education and equates LGBTI “lifestyles” with paedophilia.

For the first time in the EU’s history, the Commission alleges that these measures not only violate EU law but also its foundational values. On 5 June 2025, Advocate General (AG) Tamara Ćapeta issued her Opinion on the matter, arguing that Article 2 might indeed serve as a standalone legal basis in infringement actions – but only under specific conditions – namely, where national laws amount to a systemic violation of values that are central to mutual trust within the Union – which she finds to be the case here.

This case has seen unprecedented support by no less than fifteen Member States and the European Parliament, several of which had never joined an infringement action before. While this signals the perceived gravity and symbolic weight of the case as a defence of the EU’s commitment to LGBTIQ+ rights and the rule of law, it also resonates with scholarship suggesting that EU anti-discrimination legislation may be reaching its limits in advancing LGBTIQ+ rights, with protection shifting to constitutional principles and alternative legal instruments. This case reflects this shift, placing questions of equality and non-discrimination at the nexus of digital regulation and fundamental rights and principles.

Why the Case Matters for the Future of EU Digital Policy

Hungary’s law mandates the filtering, classification and restriction of LGBTI content across media under the guise of child protection. According to the Commission (and supported by AG Ćapeta) these measures breach several instruments of EU digital and media law, namely:

• the Audiovisual Media Services Directive (AVMSD), which prohibits unjustified restrictions on media services and content across Member States;
• the General Data Protection Regulation (GDPR), which protects the processing of sensitive personal data, including sexual orientation; and
• the Directive on electronic commerce (e-Commerce Directive), which guarantees cross-border digital service provision and prevents content-based authorisation schemes.

Both argue that Law LXXIX of 2021 not only restricts the provision of digital services but also causes stigmatisation of LGBTIQ+ groups, thereby undermining the normative function of these instruments.

Digital Constitutionalism in the EU

This is important as scholars have described the EU’s approach to digital regulation as a form of digital constitutionalism, i.e. the translation of foundational values into the normative frameworks that govern the digital sphere (De Gregorio, 2021; Celeste, 2025). The adoption of the Digital Services Act (DSA) and the European Declaration on Digital Rights and Principles for the Digital Decade marked a turning point in this context.

The DSA, fully applicable as of 2024, replaces the e-Commerce Directive and integrates rights-based safeguards into platform governance, placing emphasis on the protection of minors and the prohibition of discrimination, while the Declaration articulates a “shared vision” for a digital transformation grounded in “European values”. The Hungarian case directly intersects with these normative ambitions.

Ćapeta notes, Hungary’s law not merely violates technical provisions; it negates the values that inform their interpretation. This presents a challenge to the EU’s digital constitutionalism, which increasingly views digital policy as a mechanism for enacting the EU’s values. This reflects what Celeste calls a “socio-legal turn” in digital constitutionalism: the understanding that the digital environment is not just as a site of technological or market regulation, but as a space where fundamental rights, social inclusion and democratic governance must be safeguarded.

Normative Ambitions vs. Fragmented Realities

In ‘The Brussels Effect’, Anu Bradford (2020) describes the EU’s global regulatory power as dependent on internal coherence. Yet, Commission v Hungary lays bare a normative fault line: while the EU promotes a value-based digital transformation, Member States may resist or redefine these values in ways that not only fragment the digital single market.

From this perspective, the infringement action C‑769/22 illustrates that digital regulation has become a site for value contestation and negotiation. The Hungarian case represents a clash between competing understandings of the EU’s allegedly “shared normative vision” for digital regulation.

The case illustrates that otherwise potentially productive value contestation, without consensus, risks rifts in the EU’s (digital) constitutional identity. It raises questions such as: How can the EU uphold its constitutional identity if national governments can opt out of shared norms? And what does this mean for the safeguarding for both children’s and LGBTIQ+ rights online?

Child Online Safety and the Protection of LGBTIQ+ Groups

The EU legal order elevates both the rights of the child and the rights of LGBTIQ+ groups to primary-law status. The Union has ratified the UN Convention on the Rights of the Child and enshrined children’s rights in Article 24 of the Charter and Article 3(3) TEU. Equality and the prohibition of discrimination on grounds of sexual orientation receive the same protection in Articles 2 and 21 of the Charter and in the Treaties. Further, research has long stressed the need to balance child protection with children’s participation and agency in digital policy.

A Zero-Sum Game?

However, Hungary’s law collapses this balance, pitting one set of principles (child protection) against another (LGBTIQ+ rights). This zero-sum framing is especially damaging for LGBTIQ+ children, who rely on online spaces for representation, community and access to information. Limiting their access not only contravenes with their digital rights but undermines their dignity and equality.

Thus, where Hungary presents Law LXXIX/2021 as a child protection measure, aimed at shielding minors from “harmful” content, AG Ćapeta finds that it rather “reflects the Hungarian legislature’s position that LGBTI persons are an unwanted part of society, who do not deserve to be treated equally”. By conflating LGBTI content with moral or developmental harm, the law erases the legitimacy of queer identities and experiences, while “not provid[ing] any evidence that shielding children from LGBTI content is in the best interests of the child”.

This makes the case not simply a dispute over regulatory competence, but an attempt to reclassify minority existence as a threat. Such framing aligns with broader anti-gender politics, in which the language of “child protection” is deployed to justify the negation of sexual and gender minority rights.

Digital Sovereignty as Ideological Boundary-Making

This framing combines two powerful narratives: resistance to “gender ideology” and resistance to Brussels. In anti-gender discourse, “gender ideology” is increasingly depicted as a foreign, often Western imposition that is morally corrupting, culturally imperialist and contrary to national values. This casts EU equality policies and LGBTIQ+ rights as symptoms of cultural imperialism and, by extension, makes LXXIX/2021 an assertion of digital sovereignty: Budapest, not Brussels, should decide what children may or may not see online.

This interpretation of digital sovereignty marks a shift from technical autonomy to moral authority and aligns with research which finds that in Central and Eastern European contexts, digital sovereignty is increasingly framed not only in economic or security terms but also as a means of preserving national identity and resisting “foreign” liberal norms. Hungary essentially asserts the right to regulate content in line with its own values, even when this violates EU law.

Instead of demanding greater regulatory flexibility within the EU’s digital agenda, Hungary is advancing an ideological vision of what constitutes appropriate content, particularly in relation to gender (identity) and sexuality. It does so by claiming that the choice of how to protect children and safeguard parental rights is a matter for each Member State. However, AG Ćapeta finds that “such a margin of discretion is not unlimited”, and only applies when the Member State’s choice respects fundamental rights as well as promotes or protects such parental rights – which she finds is not the case here.

Conclusion: Whose Rights, Whose Safety and Whose Values?

C‑769/22 is not only significant for testing the justiciability of Article 2 TEU but also for what it reveals about the current state of EU digital constitutionalism. The question is what role the EU’s values play with regard to national digital and media policy. As AG Ćapeta’s notes “the negation of equality of LGBTI persons […] is the root cause of all the infringements in the present case.”, highlighting the centrality of values in interpreting and applying EU digital and media law.

This exposes the limits of a purely technocratic approach to digital governance. AG Ćapeta’s reading suggests that the effectiveness of instruments like the DSA depends on their ability to reflect and uphold the EU’s foundational principles in practice. This is especially relevant at a time of growing tensions between the EU and the U.S. over tech regulation and the rise of movements against trans rights and progressive gender and sexuality norms. In this context, C‑769/22 becomes a test of the EU’s ability to maintain a consistent, rights-based digital agenda amid political contestation.

Finally, AG Ćapeta warning against the instrumentalization of values (whereby child protection can justify discrimination on the grounds of gender (identity) or sexual orientation), underscores a broader point: digital constitutionalism in the EU is inherently political – it requires ongoing negotiation of whose rights, whose safety and whose values are safeguarded in digital spaces, making C‑769/22 a key moment in how such negotiations are adjudicated at the EU level.

Suggested citation:

Karolin Rippich, ‘A Matter of Principles: What Commission v Hungary Means for Digital Constitutionalism in the EU’ (Comparative Digital Law Blog, 27 June 2025) <https://lawandtech.ie/ca-matter-of-principles-what-commission-v-hungary-means-for-digital-constitutionalism-in-the-eu>.

About the author:

Karolin Rippich is a PhD researcher at DCU Anti-Bullying Centre & DCU Law & Tech Research Cluster, investigating the influence of anti-gender ideologies on the EU’s child online safety framework. She holds a dual Bachelor of Science in Information Science and an International Master in Security, Intelligence and Strategic Studies. Beyond her experience in different IT-Governance, Data Protection and Cybersecurity roles, Karolin has contributed to research projects on “Young Women in STEM” and Games and Gaming within Education. She is the Co-Editor of the Journal of Intersectional Social Justice and Communications Coordinator for the Digital Constitutionalism Network.