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Interesting Article: Repost: Narin Nosrati: Whose Values? Verfassungsblog 16.6.2025 [CJEU Commission v. Hungary]

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Interesting Article: Repost: Narin Nosrati: Whose Values? Verfassungsblog 16.6.2025 [CJEU Commission v. Hungary]

Value-based reasoning features prominently in CJEU case law. The most recent example is AG Ćapeta’s opinion in Commission v. Hungary. While AG Ćapeta finds an infringement of Article 2 TEU on the ground that “disrespect and marginalisation of a group [LGBTQI+ people in this case] in a society are the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights” (para. 262), this commitment to equality appears in contrast to how values are mobilised in asylum law. Especially gender and sexuality-based claims are often subject to selective scrutiny driven by cultural stereotyping and value-based conditionality. This tension thus reveals a deeper ambiguity in the legal politics of values in the EU: what is treated as absolute (“red line”) within the Union turns flexible and conditional in cases concerning asylum, integration, as well as anti-discrimination.

A closer look at the “feminist” cases (WS, K and L, and AH and FN) reveals how “Western values”-centred reasoning is deployed at the Member State level and re-elaborated by the CJEU as the fundamental value of gender equality. The EU Agency for Asylum (EUAA) recently hailed the feminist asylum case law as bringing “increased clarity” to the assessment of women seeking international protection. Yet it is precisely this claim of clarity that we wish to challenge: we argue that value-based reasoning risks opening the door to ideological reinterpretations and, as Saniya Amraoui recently observed, to othering.

While we will not dive into the vast debates in legal philosophy about values in law, we build on the acknowledgement that we are dealing with complex and contested grounds. In what follows, we question what this might reveal about the broader legal and political landscape in which asylum, identity, and human rights intersect.

The “feminist” case law

Recent CJEU rulings mark a shift toward a more gender-sensitive interpretation of EU asylum law. In WS, the Court recognised that gender-based violence, even in the private sphere, can constitute persecution. It confirmed that women may qualify as a “particular social group” in line with the Istanbul Convention and CEDAW. This reasoning was extended in K and L, where the Court considered whether two Iraqi teenage girls could be granted protection because they had internalised the value of “gender equality” during their time in the Netherlands. The Court accepted this identification with gender equality as a defining group characteristic, implicitly tying refugee protection to value alignment and lifestyle. Finally, in AH and FN, the Court held that all women in Afghanistan, facing systematic oppression under the Taliban regime, may qualify as a particular social group, without requiring individualised proof of persecution. This decision confirmed that structural discrimination and denial of basic rights can meet the threshold of persecution.

While these cases have been welcomed as a feminist turn, and while it is true that the Court recognised the need for gender sensitivity when dealing with the question of persecution, one aspect has not gained as much attention: the judicial classification of “Western values” or, as the Court calls it, the fundamental value of gender equality. This is not to downplay the significance of recent judicial developments – we fully acknowledge the importance of the efforts to advance more gender-sensitive and intersectional interpretations of migration and asylum law. However, these gains have come at the cost of a continued othering process of asylum seekers’ countries (and societies) of origin.

In K and L (para. 63), the CJEU held that

“it is for the referring court to ascertain, in particular, whether the applicants in the main proceedings genuinely identify with the fundamental value of equality between women and men […] by seeking to benefit from that equality in their daily lives, with the result that that value constitutes an integral part of their identity and whether, as a result, they would be perceived as being different by the surrounding society in their country of origin”.

In light of this, we must ask: is this truly a victory for feminism?

No need for values in refugee law cases

Arguably, what complicates adjudication in these cases is the tension between the regimes of refugee law and human rights law. As AG de la Tour has addressed it in AH and FN (paras. 51-53) and WS (paras. 1-3), this tension relates to the problem posed by dealing with acts of persecution (gender-based violence in these cases) which are both protected by (international and European) human rights standards and systematically occurring across EU Member States. In principle, Article 78(1) TFEU resolves this tension by requiring international law to be considered when interpreting EU law. The EU Qualification Directive (2011/95/EU) must be interpreted in line with the 1951 Geneva Refugee Convention, as guided by UNHCR documents, as well as key human rights treaties such as CEDAW and the Istanbul Convention. These instruments collectively establish that gender-based violence and discrimination constitute serious human rights violations. Moreover, the UNHCR Guidelines explicitly recognise that women can be considered a particular social group under refugee law without the necessity to form distinctive groups of women (para. 30) – such as those believing in “Western values”. Similarly, CEDAW defines discrimination against women as any distinction, exclusion, or restriction based on sex that impairs or nullifies the enjoyment of rights and freedoms on a basis of equality with men, and obliges states to actively eliminate such discrimination through legal and structural reforms (Article 1), and the Istanbul Convention obliges states to recognise gender-based violence as a form of persecution (Article 60).

Why has the notion of “Western values” become entrenched in the jurisprudence and administration of several Member States, although EU asylum law does not require an assessment of such values? For example, Germany, Austria, and the Netherlands have adopted narrow interpretations of the category “particular social group” when it comes to women. Instead of recognising women as a group per se – a conclusion that the CJEU has deemed legitimate in AH and FN when dealing with Afghan women under the Taliban regime – courts often require further specification. Accordingly, women only qualify if they fall into subcategories like “single women without male protection” or “Westernised women”.

Since the protection from gender-based persecution is universally recognised, irrespective of cultural identity, lifestyle, or adherence to so-called Western values, we would expect courts not to frame asylum claims through the lens of the “belief” in fundamental values (AG Collins Opinion in K and L, para. 29), but to focus on the core principles of equality, self-determination, and protection from persecution. What is the risk of taking the first path?

Lessons from queer asylum cases

Queer asylum jurisprudence and scholarship offer valuable insights into the risks of selective protection. It is particularly relevant to look into two cases, X, Y and Z (2013) and A, B and C (2014), in which the Court was faced with the task of interpreting EU asylum law in the case of asylum applications based on sexual orientation and gender identity (SOGI).

The Court clarified three main issues: first, to qualify as members of a particular social group, applicants need to satisfy both an internal requirement (identifying with the social group) and an external requirement (performing a distinctive trait of their membership) (X, Y and Z, para. 45). Second, the Court rejected the so-called discretion reasoning, namely the set of legal techniques deployed by asylum authorities to refuse international protection on the grounds that applicants could be discreet and thus conceal the characteristics that expose them to the risk of persecution (X, Y and Z, para. 71). Third, while it excluded the possibility of deciding on an application exclusively on the basis of culturally shaped stereotypes, the Court did not rule out that these can indeed play a role in the individual assessment (A, B and C, para. 62).

Building on this case law, a growing body of scholarship on queer asylum claims identifies three key lessons.

First, Sabine Jansen and Thomas Spijkerboer as well as Carmelo Danisi, Moira Dustin, Nuno Ferreira, and Nina Held demonstrate in their empirical studies on the SOGI asylum claims across Europe that credibility assessments are heavily influenced by stereotypes and dependent on European conceptions of LGBTIQ+ identities, experiences, behaviours, and affects. These include, for instance, expectations regarding LGBTIQ+ applicants’ ability to articulate their psychological and emotional path of self-discovery and coming out or assumptions about their feelings of shame or their exclusion from families and communities.

Second, as Janna Wessels shows, the cumulative criteria for the determination of particular social groups subject applicants to “double binds” whereby they are “damned if they do and damned if they don’t” (p. 44): applicants must perform an identity convincingly enough to be believed, but risk being disbelieved if that performance is deemed inauthentic, strategically exaggerated or unfit for a culturally specific conception of emancipation. One example is found in the Austrian court’s decision in AH and FN (prior to the CJEU referral): while that court imposed on the applicants the requirement to prove their adoption of a Western lifestyle in order to access protection, it also disbelieved them inasmuch as it found that such lifestyle had not “become such an essential part of their identity that it was impossible for them to renounce it in order to escape the threat of persecution in their country of origin” (AH and FN, para. 23).

Third, while the ruling out of discretion has given way to a heightened scrutiny of credibility if not a general attitude of disbelief (see Jenni Millbank), discretion reasoning cannot be fully eliminated since it is “the site where the extent of the Convention grounds is negotiated in refugee law” (Wessels, p. 35).

Understanding the implications of value-based arguments

When it comes to the “feminist” cases under examination, the most compelling insight from queer asylum literature concerns the role of the discretion and credibility requirements in the Court’s reasoning. In K and L, for instance, the Court accepts, as a ground of persecution, the applicant’s membership of a particular social group to be defined by the internalised belief in gender equality as enshrined in Article 2 TEU and “absorbed” during their stay in an EU Member State (para. 34). By focusing on “particular social group” rather than, for example, on “religion” or “political opinion” – as suggested by the Dutch referring judge (para. 27) – and by insisting on the cumulative elements of internal identification and external recognisability, the Court puts applicants in a vulnerable position: the focus shifts away from the persecutor and the risk of persecution, and instead centres on the persecuted’s acts and identities – ultimately making them responsible for proving their entitlement to protection (Wessels, pp. 38, 40). Second, the Court establishes a threshold of genuine, effective identification with all the components of gender equality as set by international legal instruments (K and L, paras. 37-44) in order to fulfil the internal requirement. In so doing, the Court imposes such a high burden of proof on applicants that they are consequently exposed to the risk of stereotyped credibility assessments. This mirrors, we argue, the “double binds” documented in queer asylum cases.

The Opinion in K and L by AG Collins further demonstrates that constructing women identifying with gender equality as a particular social group is problematic. Collins rightly rejects the East-West binary proposed by the referring court because it “perpetrates a false dichotomy that constitutes part of a divisive dialogue” (para. 18). However, he later reifies this very division by suggesting that it is “plausible” that the applicants, “in contrast to their peers in Iraq”, had so “accepted and absorbed” the belief in gender equality that it became “a part of their character” (para. 40). By framing it this way, AG Collins not only ties eligibility for protection to a perceived value alignment, but also exclusively associates the possibility of “absorbing” that value to growing on European territory. What emerges, then, is a troubling paradox: value-based reasoning, even when it appears to support progressive outcomes, undermines the universality and legal clarity of refugee law provisions. By grounding protection in applicants’ supposed internalisation of certain values, courts risk opening the door to ideological reinterpretations that may ultimately undermine international protection altogether.

Connecting the dots

This purported feminist evolution in case law is steering refugee protection away from its core purpose: to protect individuals that suffer serious human rights violations regardless of cultural adaption. It unduly shifts the attention from the persecutor to the persecuted, centres the individual assessment on the applicants’ internalisation of abstract values, understood in a Eurocentric way, and thereby reproduces the same double binds identified in queer asylum cases. Protection becomes conditional not on risk or need, but on demonstrable assimilation into a culturally preferred model of identity based on exclusionary conceptions of “European” values.

To be clear: values are constitutive of legal systems. They acquire meaning through codification, interpretation, and institutional practice. However, relying on value-based arguments in legal reasoning carries significant risks. First, it blurs the line between normative clarity and moral abstraction, creating legal uncertainty and unpredictability. Second, values can be selectively instrumentalised – even more so when framed through the lens of “Western” ideals. As such, we see that values often function as contested tools, deployed to shape or limit access to individual rights.

To serve justice rather than power, values must be legally defined, procedurally constrained, and subject to democratic scrutiny. In pluralistic societies committed to the rule of law, this calls for critical awareness, legal precision, and democratic reflection.

We therefore call for a broader, more deliberate debate about the role that values play in European law: How are they defined? Who determines them? And how do they interact with the legal principles meant to ensure equality before the law?

The post Whose Values? appeared first on Verfassungsblog.

Interesting Article – Repost: Sarah Ouředníčková, A Door Opened, But Not Fully (Verfassungsblog 17.6.2025) [ECtHR, T.H. v. the Czech Republic – sterilisation as a precondition for legal gender recognition]

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Interesting Article – Repost: Sarah Ouředníčková, A Door Opened, But Not Fully (Verfassungsblog 17.6.2025) [ECtHR, T.H. v. the Czech Republic – sterilisation as a precondition for legal gender recognition]

On 12 June 2025, the European Court of Human Rights issued a judgment in T.H. v. the Czech Republic, a case brought by a non-binary person, finding a violation of Article 8 of the Convention for requiring sterilisation as a precondition for legal gender recognition. Legally, the Court walked a familiar path, citing its established case law and reasserting well-known principles. But this case marked an unspoken first: it involved a non-binary applicant. While the applicant’s identity was acknowledged in passing, the Court quickly reframed the claim in binary terms, referred to the applicant using masculine pronouns, and declined to engage with the broader questions of inhuman and degrading treatment or discrimination. The result is thus a mixed outcome: the judgment opens a legal door but offers little warmth to those standing outside the traditional gender binary.

Who’s knocking on Strasbourg’s door?

T.H. is a non-binary person, assigned male at birth, but having struggled considerably with their gender identity from their early age (for a more detailed introduction see our previous post on the underlying decision by the Czech Constitutional Court (CCC)). As the ECtHR noted, T.H. has undergone “hormonal treatment (to reduce testosterone levels) and some body aesthetic procedures” (§ 7) but has never undertaken a sex reassignment surgery. Therefore, the Czech authorities register and treat T.H. as a man. That is reflected inter alia in T.H.’s personal numerical code, also known as “birth number”, which has the male form.

This explains the procedural strategy: T.H. had approached Czech administrative authorities with a request to change the birth number to a “neutral” (which, admittedly, does not exist in Czechia) or at least a “female” form so that this unique identifier would not present T.H. as a male person and would not require a repeated coming-out in everyday situations where T.H.’s documents did not match T.H.’s appearance. And while the CCC presented the case as a technical litigation “about birth numbers”, this case really concerns much deeper issues, including dignity and recognition of persons belonging to minorities.

What did the Court say?

The ECtHR found unanimously (and unsurprisingly) that the Czech requirement of undergoing surgery and sterilisation as a condition for legal gender recognition violates the right to respect for private life under Article 8. The Court reaffirmed that such a requirement imposes on certain persons “an insoluble dilemma”: it forces them to choose between preserving their physical integrity and gaining legal recognition of their gender identity (§ 58; see also X and Y v. Romania, § 165). The judges considered that while States enjoy a margin of appreciation in this morally sensitive area, that margin narrows considerably when fundamental aspects of personal identity and autonomy are at stake. However, the Court declined to examine the applicant’s complaints under Articles 3 and 14, holding that the violation of Article 8 sufficed. It also refused to award any compensation for non-pecuniary harm, stating that the finding of a violation was itself sufficient. Only a partial reimbursement of legal costs was granted.

Misgendering as a fundamental form of disrespect

In a case centred on recognition, language is paramount. The Court acknowledges that T.H. identifies as non-binary (§ 6) and has requested to have their male unique identifier changed to, preferably, a neutral one or, at least, a female one (§ 7). However, the Court proceeds to use masculine pronouns throughout the judgment. It justifies this by stating that

“on the date of lodging of the application, the applicant was regarded for civil-law purposes as belonging to the male sex. For that reason, the masculine form is used in referring to him; however, this cannot be construed as excluding him from the gender with which he identifies.” (§ 4)

This misstep undermines the very dignity the Court ought to uphold. Even as the judgment affirms a right, its tone betrays a missed opportunity for respect.

First, pronouns are a crucial way of identifying with a gender for anybody and of affirming their gender identity. The use of preferred pronouns, including by judges, has a fundamental importance for the recognition particularly of trans and non-binary persons. Scholars such as Rosalind Dixon have emphasised the importance of the language used by judges for a sense of dignity and respect on the part of applicants. Similarly, Sarah Ganty has shown how the language and narratives used by judges – as (meta)narrators – can become part of the cultural processes reproducing (or tackling) inequalities. At the same time, the use of preferred pronouns does not prejudge the merits of the claim as to whether one’s gender should be recognised, as noted by dissenting Judge Šimáčková in the first Transgender Judgment of the CCC. In other words, by using the applicants’ preferred pronouns, nothing is lost but much is won in terms of respect.

Secondly, the justification of using pronouns based on the legal sex/gender of the person at the time of lodging the application is inconsistent with the Court’s usual approach of addressing trans applicants in accordance with their gender identity. It is true that the Court has sometimes used the pronouns according to the officially registered sex/gender including in the key case of A. P., Garçon and Nicot v. France which also dealt with the refusal to recognise gender without undergoing gender reassignment surgery and which the applicant in T.H. relied on. However, the Court usually uses the preferred pronouns, including in its other key cases such as Goodwin v. UK, as well as more recent cases dealing with the refusal to recognise gender without undergoing surgery such as the 2021 case of X and Y v. Romania or the 2022 case of A .D. and Others v. Georgia. The Court’s refusal to use the applicant’s pronouns in T.H. is thus a surprising and unwelcome setback.

Finally, the Court’s refusal to use the applicant’s preferred pronouns is even more surprising and disrespectful given that the Court used feminine pronouns when first communicating the case. Interestingly, even the Government consistently used feminine pronouns in its communication with other institutions, which makes the Court’s choice absurd. The Government continued to use feminine pronouns even in its press release about the judgment. In a rare reversal of roles, the respondent State has thus appeared more attuned to the lived identity of the applicant than the Court itself.

Vital avenues left unexplored

Focusing exclusively on Article 8 while ignoring potential violations of Articles 3 and 14 significantly narrows the judgment’s reach and we consider it a missed opportunity. Article 14, in particular, could have grounded a stronger, intersectional judgment addressing gender-based discrimination.

The Court noted that while the applicant relied on more provisions, it was up to the Court – as the “master of the characterisation” – to decide under which Article(s) a complaint is to be examined (§ 46). It argued that since the applicant had not been subjected to any medical intervention against their will or any interference with their reproductive rights as well as “the nature of the proceedings brought by him before the domestic authorities and to the approach taken by it in similar cases”, referring to A.P., Garçon and Nicot and X and Y v. Romania, the complaint falls to be examined solely under Article 8. However, in Garçon, the situation was different in that only one of the three applicants had raised Article 3 (see dissenting opinion in Garçon, § 3 and 21). Moreover, Article 3 was still relied upon by the Court in its reasoning. The Court established that mandatory gender reassignment surgery affects “an individual’s physical integrity, which is protected by Article 3” as well as Article 8 (§ 127) and results in “making the full exercise of their right to respect for their private life under Article 8 of the Convention conditional on their relinquishing full exercise of their right to respect for their physical integrity as protected by that provision and also by Article 3 of the Convention” (§ 131).

We do understand that the applicant in T.H. had not been subjected to forced sterilisation. However, the very fact that access to legal gender recognition remained contingent upon such a procedure arguably created a form of coercive pressure. In its Guide on Article 3, the Court states

“that a threat of torture can also amount to torture, as the nature of torture covers both physical pain and mental suffering. In particular, the fear of physical torture itself may in certain circumstances constitute mental torture” (p. 8).

It is worth asking whether a person must actually undergo inhuman or degrading treatment in order for the Court to assess the situation under Article 3, if such a condition is not applied regarding torture under the same article. Instead, the Court should have fully examined the complaint under Article 3, given the severity of the required medical intervention including involuntary sterilisation; an intervention that is far from hypothetical for persons such as T.H. By refusing to engage Article 3, the Court missed the chance to affirm what the UN Special Rapporteur and others have made clear: forcing trans persons to choose between recognition and sterilisation is not just privacy infringement; it is inhumane.

Furthermore, the Court held there is no need to examine the complaint under Article 14 since it had found a violation under Article 8 (§ 62). This is the Court’s typical approach of sidelining Article 14 as a Cinderella provision and shying away from developing an equality and anti-discrimination jurisprudence. However, explicitly condemning discrimination can have powerful implications for oppressed and marginalised individuals. As in other trans rights cases, the Court opted for the safer terrain of individual privacy and self-determination, rather than confronting the structural discrimination that Article 14 is designed to expose. On the contrary, we have witnessed a mirrored attitude in Semenya v. Switzerland, a key Grand Chamber case about a famous South African professional athlete who had been forced to hormonally decrease her natural testosterone levels in order to compete in the female category. In Semenya v. Switzerland, the Court found a violation of Article 14 in connection with Article 8 while concluding that there was no need to examine separately the complaints under Article 8 alone.

A violation without remedy…

The refusal to grant compensation – despite acknowledging a violation – risks signalling that the harm endured is not materially recognised. This undermines the applicant’s lived experience and may discourage future litigation from marginalised groups. A violation without remedy rings hollow, especially for those already on the legal margins. Symbols matter.

…and with no legislative reform in sight

In a different case decided last spring, the CCC concluded that the sterilisation requirement was unconstitutional, quashed the respective legislative provisions with effect from 1 July 2025 and set a clear deadline for legislative reform by the end of June 2025. A draft law was circulated but has been criticised for introducing burdensome and medically unnecessary conditions, such as mandatory psychiatric assessments, hormone therapy, and a year-long waiting period. Even more troubling is the political inertia surrounding the bill. The Ministries of Justice, Health, and the Interior have each shifted responsibility to the others, resulting in a bureaucratic stalemate.

Thus, no legislation has been adopted – and with just two weeks remaining, none is realistically expected before the deadline expires. That means that although the sterilisation requirement will cease to apply as of July 2025 (as a consequence of the abovementioned CCC ruling), the legal framework for gender recognition will remain ambiguous and unregulated at statutory level. Ministerial guidelines might be issued at the last minute, but such measures lack the democratic legitimacy of legislation and can be easily altered to reflect shifts in political will. This looming legal vacuum – a situation the ECtHR was aware of (§ 26) – raises serious concerns for legal certainty.

A partial step forward

The judgment in T.H. represents a partial but important step in the ongoing development of the ECtHR’s jurisprudence on legal gender recognition. It reaffirms that requiring sterilisation as a condition for the recognition of one’s gender identity is incompatible with Article 8. It also emphasises the importance of judicial dialogue (§ 59), inviting national constitutional courts to share the responsibility for European human rights protection. However, the Court’s reasoning remains narrowly framed. By misgendering the applicant, reframing the case within a binary framework, and declining to engage with the potential implications under Articles 3 and 14, the Court missed an opportunity to address what the case was really about.

The post A Door Opened, But Not Fully appeared first on Verfassungsblog.

Australia: Lifeblood announces changes to sexual activity rules for blood and plasma donation

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Australia: Lifeblood announces changes to sexual activity rules for blood and plasma donation

Current donor rules in Australia prevent many gay and bisexual men and transgender women who have sex with men from giving blood or plasma if they have had sex in the past three months.

Lifeblood has been working to make blood and plasma donation more inclusive and accessible to as many people as possible, whilst maintaining the safety of the blood supply.

In the first of the rule changes, from Monday, 14 July 2025 Lifeblood will remove most sexual activity wait times for plasma donations.

More: https://www.lifeblood.com.au/news-and-stories/media-centre/media-releases/lifeblood-announces-changes-sexual-activity-rules-blood-and-plasma

Interesting Article: From Dialogue to Discord (Lena Kaiser on Verfassungsblog) [CJEU Commission v. Hungary]

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Interesting Article: From Dialogue to Discord (Lena Kaiser on Verfassungsblog) [CJEU Commission v. Hungary]

“For the for foregoing reasons, I am of the view that the Court should find that […], Hungary has infringed Article 2 TEU.’ ‘This negation of values enshrined in Article 2 TEU is the impalpable ‘something more’, which prompted the Commission to introduce the sixth plea.”

With these strong words, Advocate General Ćapeta concluded the first part of her Opinion regarding a violation of Article 2 TEU, which lies at the heart of the pending case before the CJEU – a case that bears, quite appropriately, the name “Valeurs de l’Union”. Although this assessment may have been expected – especially since AG Ćapeta is known as an Advocate General who interprets European law in a particularly progressive and dynamic manner – her words are likely to cause a stir. Even though this is not the final judgment, it is unprecedented for Article 2 TEU to be declared justiciable and found to have been infringed.

The upcoming judgment of the CJEU in case C-769/22 will be a landmark ruling for several reasons. First, it concerns the question of whether Article 2 TEU can serve – in the words of AG Ćapeta – as a self-standing ground for an infringement action (para. 32). This aspect touches upon the widely discussed issue of justiciability in European scholarship. Second, the case is about developing standards for identifying values of Article 2 TEU. Both involve fundamental questions, as Article 2 TEU deals with nothing less than the foundational principles of the European Union itself.

This centrality of Article 2 TEU – which was already present during the oral hearing in November – is also reflected in Ćapeta’s approach. Notably, her Opinion opens with the examination of Article 2 TEU, while the Commission deliberately listed Article 2 TEU as the final plea in law – precisely to emphasize that Hungary’s violation of Article 2 TEU constitutes the crowning element of the case. The Commission repeatedly emphasized that the internal market provisions triggered the scope of the Charter, and that these systematic and serious infringements then contained a “something more” which led to a violation of Article 2 TEU. This is not a matter of legal hairsplitting. It matters how arguments are constructed and in what order they are presented.

After offering a substantive overview of Ćapeta’s Opinion regarding Article 2 TEU, this contribution will focus on two notable features of her reasoning: First, the use of the term “good society”, which introduces a concerning ethical dimension. Second, the criterion Ćapeta introduced for establishing a violation of Article 2 TEU – namely, the “negation of values”, which is insufficient and merely shifts the problem of developing concrete standards rather than solving it.

A Closer Look on Ćapeta’s Argument on Article 2 TEU

Because Ćapeta relies, inter alia, on significant Charter violations for finding an infringement of Article 2 TEU, she starts her analysis by examining fundamental rights (paras 45 ff.). She finds violations of Article 21, Article 11, Article 7, and Article 1.

In addition, she particularly advocates for the Court’s first-ever recognition of a violation of Article 2 TEU as a self-standing ground (paras. 142). Ćapeta rightly limits herself to the relevant question here – namely, whether Article 2 TEU can be applied as a self-standing ground for action within the scope of Union law – and leaves the broader debate over its autonomous application for a future case (para. 144).

Her Opinion on Art. 2 TEU is divided into two parts: First, she examines the much-debated question of the justiciability of Article 2 TEU (paras. 150 ff.). Specifically, this concerns whether Article 2 TEU can function as a self-standing ground to assess legality within infringement proceedings – rather than merely serve, as often in the past, to interpret or further define legal provisions. The subsequent question is under what circumstances Article 2 TEU may be infringed, with a focus on the development of applicable criteria (paras. 235). While the Member States unanimously supported the general justiciability of Article 2 TEU during the oral hearing – differing only as to whether Article 2 TEU can be applied on its own or concretized by other provisions – their submissions displayed a remarkable diversity of approaches regarding which criteria should be used to establish a violation of Article 2 TEU. In this respect, the Member States found themselves “united in diversity”.

In her discussion of justiciability, Ćapeta begins with a textbook-like explanation of Article 2 TEU’s function as the constitutional identity of the Union’s legal order. Moreover, she points out that Article 2 TEU is a legally binding provision, whose observance – according to Article 49 TEU – is a prerequisite for accession to the Union. Furthermore, in Repubblika, the CJEU established the principle of non-regression, according to which Member States – precisely because of their decision by choice to join a society and a Union based on Article 2 TEU – are obliged to maintain at least the level of protection of these values as existed at the time of accession (paras. 181 ff.). Ćapeta correctly argues that this principle of non-regression is not limited to the value of the rule of law but rather constitutes a value-based prohibition of regression, which applies equally to the values at issue here, such as human rights and equality (para. 183). After addressing arguments often misleadingly abbreviated in the literature – such as the claim that Article 7 TEU precludes justiciability (para. 196) – Ćapeta also finds, convincingly, that Article 2 TEU is justiciable and can therefore serve as a self-standing ground (para. 233).

Ćapeta then poses the central question, which lies at the heart of the case: Which standards and criteria indicate a violation of Article 2 TEU? She sharpens this issue by asking how it is to be assessed whether a Member State has crossed the “red lines” (para. 234). Precisely because Article 2 TEU allows for constitutional pluralism, the boundaries of what has been agreed upon must be clear to the Member States. Ćapeta approaches this question abstractly first (para. 237): while rejecting criteria such as the number or severity of violations, she considers that the key criterion for finding a breach of Article 2 TEU is a “negation of values”. The number of infringements may, but does not necessarily have to, indicate a violation of Article 2 TEU (para. 248). She argues that violations of, for example, Union fundamental rights can still reflect constitutional dialogue, where values and their interpretation are negotiated. In her view, only a “negation of values” — not interpretative differences, even if they entail legal breaches — constitutes a violation of Article 2 TEU (para. 253).

Ćapeta ultimately concludes that, in the case at hand, there is no longer any legitimate constitutional dialogue, but rather a degree of discord so severe that it amounts to a “negation of values” (para. 255). The denial of equality for LGBTI persons, which forms the basis of all the breaches, is not something over which legitimate debate within constitutional dialogue can persist; instead, it amounts to a violation of Article 2 TEU – specifically with respect to human rights, human dignity, and equality (para. 273).

The Ethical Dimension in a “good society”

What stands out is Ćapeta’s reference to the idea of a “good society” (paras. 157, 177), whose vision is expressed in Art. 2 TEU, and which she invokes in the context of the Union’s constitutional identity. Obviously, this assessment contains an ethical dimension, which inevitably raises the question of what “good” actually means. The reason we find such an approach in Ćapeta’s Opinion lies in the specific nature of the case: this one does not focus on the rule of law – a value supported by extensive case law. Rather, the case concerns LGBTQI rights and the stigmatization of a minority, a context which (1) involves values that have not previously been central in the Court’s jurisprudence, and (2) touches a domain in which the Hungarian government itself has justified its actions as promoting the “good life”.

The narrative then also explains Ćapeta’s adoption of the term “good society”. By describing society as “good” – in reference to the European Society set out in Article 2 (2) TEU – she deliberately engages with this theme and offers a counter-narrative to the model promoted by the Hungarian government.

This ethical dimension is problematic for at least two reasons: Firstly, the use of the term “good” plays into the hands of those who consider Article 2 TEU to be non-justiciable due to its vagueness and abstractness, and who accuse the CJEU of using its case law to enforce a “European way of life” and of abusing Article 2 TEU as a homogeneity clause. The justiciability and legal force of the values in Article 2 TEU have long been controversial, not least because the term “values” could be understood as implying a primarily moral or ethical content. Even though the CJEU’s judgment on the rule of law conditionality has now confirmed at the highest level that Article 2 TEU is legally binding, the use of the word “good” risks reigniting old controversies.

Secondly, the assessment of what is “good” is inherently selective and unpredictable. While a case-by-case approach to Article 2 TEU helps avoid overly specific standards and maintains its character as a result-oriented norm, the reference to the term “good” further increases this selectivity.

Constitutional Dialogue versus Negation of Values

Equally striking are the distinct terms “negation of values” and “constitutional dialogue”, which Ćapeta employs in developing criteria for Article 2 TEU violations and distinguishes from one another.

She rightly observes that values are negotiated within a constitutional dialogue (para. 203) and that Article 2 TEU allows for different interpretations. This is also reflected in the case law of the CJEU, which considers Article 2 TEU as imposing only obligations of result. Although the Court has, in the exercise of its jurisdiction, necessarily given Article 2 TEU more substance this pluralism is also evident, for example, in the principle of non-regression, which does not establish concrete requirements for the Member States but, with its particular temporal reference point and reliance on each national legal order, has a pluralism-preserving effect.

Nonetheless, her choice of criteria is problematic: For her, the “negation of values” is the only relevant criterion, distinct from legitimate constitutional dialogue – a dialogue that may involve legal breaches, but, in the absence of negation, does not amount to a violation of Article 2 TEU. While the latter point is convincing, Ćapeta’s approach merely shifts the problem: the term “negation” is somehow interchangeable with “violation” and does not provide any further requirements or a set of criteria that would indicate such negation. According to Ćapeta, a considerable number of violations may indicate a negation of values, but do not necessarily do so. Likewise, serious violations are not, in and of themselves, sufficient indicators (para. 241).

The case for “systemic deficits”

The question is: Are we expecting too much? Certainly, the Court is under a great deal of pressure. Admittedly, this question represents both a significant, but also a minimal step forward. The underlying necessity stems from the principles of legal clarity and certainty: when a law is enacted, a standard is required to determine whether and when it has been infringed. This is a legitimate expectation that the Member States are entitled to have.

But this expectation may be better met with other criteria. Particularly, the conceptual notion of “systemic deficit” may offer an effective framework for identifying a ”negation of values”, and thus a violation of Article 2 TEU. What makes this concept appealing is its multi-layered nature, allowing for examination across various dimensions. While Ćapeta rightly notes that multiple infringements alone do not necessarily establish a breach of Article 2 TEU, the concept of systemic deficit provides various elements – such as the number and intent of violations, as well as a temporal and qualitative dimension that may be determined by reference to the essence of the values – to ensure legal certainty. Generally, no single criterion is sufficient to establish a violation of Article 2 TEU; rather, such a finding should be based on a holistic assessment and contextualization.

The notion of a systemic deficit can be understood as a mesh of interrelated elements: the more intense and intentional the infringements, and the more the violated legal norms can be seen as expressions of the essence of the values, the more likely it is that there is a negation of values. Under such circumstances, the space for legitimate constitutional dialogue – formed through the Union’s foundational and continued consensus in Art. 2 TEU, which itself is the product of deliberate choice – shifts into discord.  This act of choice is also reflected in the accession of each new Member State under Article 49 TEU, which justifies not only the conditions required for the functioning of the Union’s legal order, but also the establishment of the principle of non-regression (para. 177). Ćapeta effectively recalls this choice and the Member States’ voluntary decision to join the Union (para. 155).

In any case, the suspense remains as to which arguments the CJEU will draw upon for its decision in full court.

The post From Dialogue to Discord appeared first on Verfassungsblog.

Interesting Article: Repost of “Somewhere Over The Rainbow” (Konstantinos Lamprinoudis on Verfassungsblog) [CJEU Commission v. Hungary]

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Interesting Article: Repost of “Somewhere Over The Rainbow” (Konstantinos Lamprinoudis on Verfassungsblog) [CJEU Commission v. Hungary]

In the original version of the world-renowned musical film “The Wizard of Oz”, the young protagonist Dorothy sings of her wish to escape her currently troubled world and flee to a better place “somewhere over the rainbow”. A similar vision of an ideal “rainbow land” – where all people can enjoy their rights without risk of discrimination – informs the European Commission’s aspiration to make the European Union a safe and inclusive space for sexual and gender minorities (“LGBTIQ”). It is thus no wonder that the Commission launched an infringement procedure against the Hungarian Law LXXIX of 2021 which restricts access of minors to content which “promotes or portrays divergence from self-identity corresponding to the sex assigned at birth, sex change or homosexuality” (known as the “child protection” or “anti-LGBTIQ” law). The procedure culminated to a landmark dispute before the EU Court of Justice in Commission v. Hungary, with the Opinion of Advocate General Ćapeta delivered on 5 June 2025.

What is striking, at least at first sight, is the way in which this case has been framed: despite the blatantly discriminatory nature of Hungary’s legislation, the Commission’s arguments revolve around the violation of several internal market provisions relating to the free movement of services along with certain fundamental rights enshrined in the Charter as well as the values of Article 2 TEU. In my view, however, Commission v. Hungary constitutes a discrimination case in disguise, as Ćapeta’s Opinion confirms. I argue that non-discrimination considerations have been purposively “camouflaged” in the present dispute in order to effectively safeguard the rights of sexual and gender minorities under EU law, given the limited scope of LGBTIQ protection in EU non-discrimination and equality law.

Accordingly, my analysis here offers an EU equality law perspective on the case, leaving aside other important issues raised that have already attracted a great deal of scholarly attention, most prominently the Commission’s unprecedented use of Article 2 TEU as a standalone plea (see e.g. Kaiser, Spieker, Kaiser, Okunrobo, Bonelli and Claes, Riedl, and Rossi).

The limited scope of LGBTIQ protection under EU non-discrimination and equality law

Discrimination cases at EU level are traditionally adjudicated on the basis of EU non-discrimination and equality law. This comprises a set of Directives (the so-called “Equality Directives”) as well as Articles 20 and 21(1) of the Charter, and is notoriously founded on a hierarchy of discrimination grounds, in the sense that certain personal traits (racial/ethnic origin and sex) enjoy a higher level of protection than others (disability, age, sexual orientation and religion) (see Howard). Accordingly, when it comes to discrimination against members of the LGBTIQ community, the protection granted by EU law falls under different legal frameworks and thus varies depending on whether the discriminatory treatment is based on sexual orientation or sex.

More specifically, the prohibition of discrimination on grounds of sexual orientation (i.e. against gay, lesbian or bisexual persons) applies only in the field of employment and occupation pursuant to Directive 2000/78/EC. This is why all cases of discriminatory treatment of homosexuals adjudicated by the CJEU so far concerned solely employment matters (see Maruko, Römer, Hay, NH, Asociaţia Accept), including self-employed activities (see TP). In 2008, the Commission proposed a horizontal Directive which would extend the protection against discrimination irrespective of sexual orientation beyond the labour market. However, the proposal has not reached unanimity in the Council as required by Article 19 TFEU and remains blocked since then (see European Parliament), facing now the risk of being withdrawn due to lack of “foreseeable agreement” between the Member States (see Annex IV of 2025 Commission’s work programme).

As regards the protection of individuals against discrimination on the basis of their gender identity, gender expression or sex characteristics (e.g. trans, non-binary, intersex individuals, etc.), the relevant point of reference is EU gender equality legislation. Following the Court’s ruling in P v. S (further confirmed in KB, Richards and MB), discrimination against trans persons arising from their gender reassignment has been recognised as a form of sex discrimination, with that case law being now codified in recital 3 of Directive 2006/54/EC and recital 5 of Directive (EU) 2024/1500. Hence, people who have undergone gender reassignment can benefit from equal treatment not only in the workplace (Directive 2006/54/EC and Directive 2010/41/EU), but also in a wide range of areas encompassing access to and supply of goods and services (Directive 2004/113/EC) as well as social security (Directive 79/7/EEC). However, as noted by Marcia, the protection against discrimination in this regard seems to be based on a “medicalised understanding” of gender identity, concerning only those individuals who have undergone surgical treatment. As such, the existing anti-discrimination protection excludes a significant percentage of the trans population as well as other gender minorities (e.g. intersex people). However, the CJEU’s recent judgment in Mousse suggests that sex discrimination may also extend to trans individuals who have not undergone a physical change of gender (see Opinion of AG Ćapeta in Commission v. Hungary, para. 62). In any case, although gender identity, gender expression and sex characteristics feature explicitly among the list of traits defining “victims” of sex discrimination under Directive (EU) 2024/1500, it is still unclear whether all the persons affected are covered by the existing legal framework absent any case law on the matter (see European Parliamentary Research Service 2025).

As for Article 21(1) of the Charter enshrining the prohibition of discrimination on any ground including sex and sexual orientation (but not explicitly gender identity or characteristics), it also has a limited scope despite its seemingly open-ended wording, applying solely to the actions of EU institutions and those of the Member States when they are implementing EU law, by virtue of Article 51(1) of the Charter. In fact, the only time Article 21(1) has been mentioned to date in litigation involving discrimination against LGBTIQ minorities was in Léger concerning the implementation of Directive 2004/33/EC. In this case, the CJEU concluded that a French law which entailed a permanent contraindication to blood donation for homosexual men discriminated against them on the grounds of their sexual orientation, subject to justification under Article 52(1) of the Charter.

The threefold guise of non-discrimination considerations

These limits of EU non-discrimination and equality law may explain why the far-reaching discriminatory effects of Hungarian legislation for the LGBTIQ community could not have been fully captured on that legal basis, thereby “forcing” the Commission to opt for a different path. Be that as it may, non-discrimination considerations are abundantly present in Commission v. Hungary, albeit under a threefold guise that corresponds to the three-level structure of the Commission’s argumentation, namely the breach of (1) internal market legislation, (2) Charter-based rights, and (3) the values of Article 2 TEU.

Internal market legislation

Pursuant to the so-called “horizontal equality clause” of Article 10 TFEU, combatting discrimination based, among others, on sex or sexual orientation is relevant to all policy areas of EU law, even in those not necessarily associated with equality and even where no specific equal treatment provisions exist, thereby diversifying the forms of equality promotion within the EU (see Timmer and Muir, Davio and van der Meulen). Against this background, it is unsurprising that the CJEU increasingly relies on economic instruments to achieve equality objectives in favour of LGBTIQ individuals, as observed by Baillet. This trend is particularly evident in the field of data protection and free movement law, where persons belonging to sexual or gender minorities were granted protection by reference to the GDPR (see Mousse and Deldits), or by relying on Articles 20 and 21 TFEU and the Citizenship Directive (see Coman, Pancharevo and Mirin), respectively.

In the case of Commission v. Hungary, among the various internal market provisions relied on by the Commission, the only one expressly granting protection to LGBTIQ persons against discrimination is Article 9(1)(c)(ii) of the Audiovisual Media Services Directive (see Baillet). Nevertheless, all the rules of primary and secondary law relating to free movement of services (i.e. those contained in the Audiovisual Media Services Directive, the e-Commerce Directive, the Services Directive and Article 56 TFEU) that Hungary violated according to the Commission sufficed to bring the case within the ambit of EU law, thus triggering the applicability of the Charter as per its Article 51(1). In this regard, AG Ćapeta recalled that any derogations from the freedom to provide services must respect fundamental rights (para. 284 with reference to the line of case law following ERT) and concluded that the Hungarian legislation contravenes multiple EU law provisions on free movement of services in an unjustified manner (paras. 277-340).

Charter-based rights

Apart from the above internal market instruments, the Commission claimed that the Hungarian rules violate the fundamental rights to human dignity (Article 1), private life (Article 7), freedom of expression (Article 11) and non-discrimination (Article 21) of the Charter. Whereas the invocation of the latter right is unsurprising, being the only one explicitly related to equality considerations, the reference to the other rights is perhaps striking. Yet, these rights have been also deployed by the CJEU in the past to grant protection to LGBTIQ persons: for instance, the Court linked the recognition of sex discrimination on the basis of transgender identity to the respect of dignity in P v. S even before the adoption of the Charter; it further recognised free movement rights of rainbow-families on the basis of Article 7 Charter in Coman and Pancharevo. Similarly, the Court ruled in NH that discriminatory statements about homosexuals in matters of employment are not covered by the employer’s freedom of expression under Article 11. The CJEU’s approach in these cases explicitly draws on the rich case law of the ECtHR which has predominantly relied on the rights to private life and freedom of expression under Articles 8 and 10 ECHR, respectively, taken separately or in combination with Article 14 ECHR on non-discrimination to ensure effective protection of LGBTIQ individuals.

In her Opinion in Commission v. Hungary, AG Ćapeta fully sided with the Commission’s position about all the alleged fundamental rights infringements. Starting with Article 21 of the Charter as the guiding provision of her argumentation, she observed that, by creating a difference in treatment between heterosexual and cisgender persons in comparison to LGBTIQ persons, the Hungarian provisions are clearly based on the prohibited criteria of sex and sexual orientation and, as such, are directly discriminatory (paras. 67-69).

Most importantly, the AG emphasised the stigmatising effects for the members of LGBTIQ minorities that result from Hungary’s legislation, undermining the very nature of the principle of equality. She noted that these effects are further aggravated due to the merging of the rules in question with those concerning the protection of children from paedophilia (paras. 73-81).

In a similar vein, by interpreting Articles 7 and 11 of the Charter in light of their ECHR counterparts, AG Ćapeta found that the contested rules interfere with the freedom of expression and information (paras. 84-93), while also severely affecting the private lives of LGBTIQ individuals through the creation of a hostile climate towards them in Hungary (paras. 94-102). Accordingly, the AG concluded that the fundamental rights restrictions in question cannot be justified pursuant to Article 52(1) of the Charter (paras. 103-133), thus giving rise to a violation of human dignity under Article 1 thereof (paras. 134-141).

Interestingly, AG Ćapeta’s analysis expressly underlines the harmful effects of the Hungarian provisions not only for the LGBTIQ community itself but also for the general public. In line with the doctrine of discrimination by association (see e.g. CHEZ), she argued that the prohibition on the provision of or access to LGBTIQ content affects natural and legal persons in general (e.g. any service provider or service recipient), regardless of the victims’ belonging to sexual or gender minorities (paras. 66 and 72). This confirms that, contrary to the ECtHR’s findings on Article 14 ECHR in the similar case of Macatė v. Lithuania (see para. 221 and dissenting opinion), Article 21(1) of the Charter captures discriminatory restrictions on pro-LGBTIQ content as such.

Similarly, in the AG’s view, the interference of the contested rules with the freedom of expression concerns anyone wishing to impart or receive pro-LGBTIQ information (paras. 88-89) and results in breaching the dignity of anyone who is prevented from treating LGBTIQ persons equally with the rest of society due to the prohibition at issue (para. 138). By highlighting these broader societal implications of the Hungarian legislation, AG Ćapeta clarified that such serious and systemic discrimination against certain minority groups in a given Member State amounts to an overall deviation from the EU’s constitutional model of society as expressed in Article 2 TEU (paras. 155-157 and 265), thus linking the fundamental rights infringements at issue with the breach of EU values discussed subsequently in her Opinion.

Article 2 TEU values

Turning to Article 2 TEU, the question whether it can be used as a self-standing ground of infringement of EU law goes beyond the scope of my present analysis. What is worth noting, though, is that Commission v. Hungary constitutes the very first discrimination dispute relying on the Treaty provision on EU values. This is all the more remarkable given that the level of protection granted to LGBTIQ rights largely differs among Member States, thus raising the question whether the prohibition of discrimination against sexual and gender minorities can be plausibly considered a “common” EU value at all (see Bonelli and Claes).

Although AG Ćapeta acknowledged the sensitive and contested nature of LGBTIQ equality for some European societies (paras. 83, 259, 263-264), she emphatically argued that disrespect and marginalisation of an entire societal group are “the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights” (para. 262). In her view, the prohibition of discrimination on grounds of sex or sexual orientation constitutes a choice that is “firmly rooted in the EU constitutional framework”, as expressed in Articles 21 of the Charter and 19 TFEU. Thus, the question is not “if” equality on those grounds should be guaranteed, but rather “how” – with its implementation potentially varying among different Member States (paras. 82 and 263). Consequently, by reflecting the idea that members of the LGBTI community are “an unwanted part of society”, the Hungarian legislation at issue results in “negating” the values of Articles 2 TEU, as specified by the fundamental rights of Articles 1, 7, 11 and 21 of the Charter which she deemed violated (paras. 265-271).

Never before had a violation of the Charter’s right to non-discrimination been found to contravene the values of equality, tolerance and human dignity set out in Article 2 TEU (para. 268). This development seems to build upon the CJEU’s obiter dictum in Hungary v. Parliament and Council (paras. 157-158) stating that the scope of the values of equality and non-discrimination is defined by Articles 20 and 21 of the Charter as well as by Articles 10 and 19(1) TFEU. Moreover, it is well-established case law that the principle of equal treatment enshrined in Article 20 of the Charter constitutes a general principle, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression (see e.g. Glatzel, para. 43). Taken together, one may conclude that the AG’s findings in Commission v. Hungary mark the apex of the constitutionalisation of equality and non-discrimination within the EU legal order – they are now clearly utilised not only as general principles, but also as judicially enforceable values.

Conclusion

As now fully endorsed by AG Ćapeta, the “disguised” discrimination case against Hungary seeks to protect LGBTIQ people through the back door, bypassing ingeniously the restrictive scope of the EU Equality Directives. Should the CJEU uphold this approach, the same tools could be also deployed to tackle other forms of blatant and generalised State actions against the LGBTIQ community, such as Hungary’s recent legislative ban on Pride parades. As such, Commission v. Hungary constitutes yet another notable example of the recent judicial trend observed above: EU non-discrimination and equality law appears to progressively concede its role in upholding LGBTIQ rights to alternative legal instruments. This confirms that the currently existing EU rules against discrimination have reached their limit, failing to provide sufficient protection to sexual and gender minorities. Thankfully, though, different tools available under EU law prove to be an effective substitute to achieve the envisaged level of LGBTIQ equality. Under these circumstances, absent a comprehensive equality framework at EU level, the “rainbow-coloured” utopia promised by the Commission is to be inevitably sought somewhere else… over non-discrimination law.

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The European Commission has reversed its decision to withdraw the proposed Equal Treatment Directive

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The European Commission has reversed its decision to withdraw the proposed Equal Treatment Directive

The European Commission has reversed its decision to withdraw the proposed Equal Treatment Directive, just days after ILGA-Europe and partners delivered a petition signed by more than 33,000 people to President Ursula von der Leyen.

First proposed in 2008, the directive would extend anti-discrimination protections beyond employment into everyday life, covering age, disability, religion or belief, and sexual orientation.

This reversal comes after months of pressure from civil society, EU Member States, and the European Parliament. The directive is now back on the table, but unanimity in the Council of Europe is still required.

Comprehensive EU anti-discrimination legislation is long overdue. It’s time for all Member States to step up.

Read the full story at http://ilga-europe.org/…/eu-commission-reverses-course…/