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Thomas CROMWELL: EU Social Policy: Supranationalism vs. National Interest (PART 2)

The Case of Hungary

In leading up to this article (here) I suggested that the European Union is overreaching the authority vested in it by its members, and that this is ultimately a matter of morality. I further suggested that European civilization was built on Judeo-Christian values, that should be used in determining the proper relationship between the EU and its members, and that this can be done by employing what I call the Cain-Abel paradigm. In this Part II, I will elaborate on this thesis with regard to EU Social Policy, focusing on the role and behavior of the EU Commission, and will look at the specific case of EU overreach regarding the content of text books in Hungary.

The Flimsy Foundations for EU Social Policy

Strategy papers do not have binding legal force compared to international human rights agreements and treaties. Even though the papers may include definitions, member states are not obliged to accept them, especially when these definitions touch on member states’ competences and prerogatives. For example, national legislatures have the right to define marriage in their family law in a manner consistent with prevailing norms in their society, norms that may not hold for a group of EU bureaucrats or ‘experts’ who see themselves as qualified to dictate such definitions for all member states.

This misuse of power is evident in the European Commission’s European Gender Equality Strategy 2020-2025, announced on March 5, 2020. The strategy ostensibly aims to ensure gender equality in all policy areas in order to achieve real equality between men and women. Although gender equality is vital, the Strategy uses this widely supported purpose to push a much broader political and social agenda. Thus instead of defining what it means by ’gender’, the Strategy uses the definition of gender used in the Istanbul Convention on preventing and combating violence against women and domestic violence. The Istanbul Convention is not an EU legal source, but it was adopted by the Council of Europe, signed by the members of the Council and some non-members of the Council and the EU itself, such that it required ratification by Member States.

Interestingly, the Istanbul Convention—due to its sensitive legal-political implications on defining terms (such as gender) which are in the competence of nation states—was not ratified by the following countries: Armenia, Bulgaria, Czechia, Hungary, Lithuania, Latvia, Slovak Republic, United Kingdom and Ukraine. Turkey denounced it in 2021. The EU recently joined the convention, despite many of its members not having ratified it. This demonstrates that EU leadership is willing to trample on Member State rights on behalf of a social agenda being advanced by a small lobby of radical Leftists.

Furthermore, the European Commission adopted its LGBTIQ Equality Strategy on 12 November 2020. This Strategy is not a law. It is a policy being advanced by the Commission (similar to the Gender Equality Strategy). However, it touches upon politically sensitive issues (such as defining genders) that again infringe on the Member States’ prerogatives and competences. The Cain-like nature of this document lies in the way it seeks to ’make law’ by using sources that provide cover for its destructive, extra-constitutional agenda. The Commission uses ’soft’ sources to incentivize the Council of the European Union and the European Parliament to create ’hard’ law.

The LGBTIQ Equality Strategy refers to primary legal sources—Treaties, the Charter of Fundamental Rights—to wrap its agenda in the language of human rights and non-discrimination. However, fighting discrimination is possible under the existing legal framework —which is cited in the strategy paper. Gender equality is already secured by the Charter of Fundamental Rights (EU) and is applicable to all EU and member institutions insofar as they implement EU law. Furthermore, there is already a great deal of EU law to implement that was enacted to counter discrimination on a broader scale. And gender equality is provided for everyone under International Public Law, the European Convention on Human Rights and UN Treaties.

The point is that the notion of equality arises from our Judeo-Christian culture and the belief that all people are ’children’ of God and therefore naturally of equal value. Thus, it is not necessary to define genders on the EU level to ensure gender equality within the EU or in member states. If anything, such rules are overly redundant and contribute to the general feeling of creeping over-regulation. Thus, it is evident that the purpose behind the two EU Commission strategy statements is clearly other than what gender equality means in existing international agreements and treaties. And by imposing the policies embedded in these strategies, the Commission is clearly overstepping the competences the member states originally intended to grant it—also known as ‘competence creep’.    

The two strategies reveal, then, an agenda to go beyond existing pan-European and even global norms to accommodate a specific set of interests of a particular minority community. This is a clear abuse of Brussels’ power which seeks to impose a gender ideology on all the people of Europe, irrespective of their varying beliefs. This is a Cain-type abuse of the EU bureaucracy. For the many Europeans who treasure traditional family values, this is not an innocent, let alone moral, intervention by the EU.

Hungary Falls Afoul of EU Overreach

Hungary, a Virginia-sized, post-Socialist country in Central and Eastern Europe, is strongly committed to the Judeo-Christian values that underpin Western Civilization and is ready to stand up for these values. Hungary values its EU membership—and securing it was a priority for Budapest after it got free from Soviet hegemony at the end of the 1980s. In the context of this article, at issue in the dispute over the content of text books is the extent to which EU membership gives the EU’s governing bodies the right to impose on Hungary a social agenda that Budapest is opposed to. Hungary argues that it already has comprehensive anti-discrimination legal protection mechanisms which are in line with EU law and international requirements.

Moreover, the Fundamental Law of Hungary prohibits all kinds of discrimination, including discrimination on the basis of sex, and declares equal rights for men and women. Furthermore, the EU Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities contains detailed rules on the requirements of equal treatment, including explicitly prohibiting discrimination based on sexual orientation as well as gender identity under Article 8. Equal treatment-related issues are dealt with by a separate unit of the Office of the Commissioner for Fundamental Rights, which is called the Directorate General for Equal Treatment.

Besides primary legal sources, the EU adopted secondary legal sources (such as the Directive 2005/29/EC on unfair commercial practices) in support of the single market. Some of these sources may have human rights aspects. For example, a state may breach the unfair commercial practices directive by requiring additional steps from certain groups of sellers to be permitted to sell their products in the state–conditions not applied to other sellers. This may be interpreted as discrimination, unless it is justified by public interest. The legal battle starts, then, when states consider distinguishing between certain industries and groups as justified by a national interest. However, while they consider their actions to fall within their national jurisdiction, the EU Commission may consider the practices at issue discriminatory. This is the situation where infringement proceedings occur that relate to alleged non-compliance with obligations arising under EU law.

Navigating the Intersection of Ideology, Law, and Supranationalism

The Hungarian Consumer Protection Authority recently obliged the publisher of a book for children that seeks to explain LGBTIQ people, to include a disclaimer that the book depicts forms of “behavior deviating from traditional gender roles.” The Commission considered that by imposing an obligation on the publisher to provide this disclaimer, Hungary was limiting the freedom of expression of the authors and book publishers (Article 11 of the EU Charter of Fundamental Rights); discriminating on grounds of sexual orientation in an unjustified way (Article 21 of the EU Charter of Fundamental Rights), and incorrectly applying the EU rules on unfair commercial practices (Directive 2005/29/EC). 

In addition to imposing the book disclaimer, Hungary adopted a law in June 2021 which in particular prohibits or limits access to content that promotes or portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’ for individuals under 18. The EU Commission agreed that the protection of minors is a legitimate public interest which the EU shares and pursues. However, in this case the EU claimed that Hungary had failed to explain why the exposure of children to LGBTIQ content as such would be detrimental to their well-being and not in line with the best interests of the child.

The Commission claimed that this law violates a number of EU rules. First, the Audiovisual Media Services Directive (AVMSD) had been breached as regards standards for audio-visual content and the free provision of cross-border audiovisual media services, since Hungary had put in place unjustified and disproportionate restrictions that discriminate against people based on their sexual orientation. Second, some of the contested provisions infringe the e-commerce Directive (namely the country of origin principle). The law prohibits the provision of services displaying content showing different sexual orientations to minors, even if these services originate from other member states. Third, Hungary failed to justify restricting cross-border information services. Fourth, Hungary failed to notify the Commission in advance of its decisions, although doing so is required by the Single Market Transparency Directive. Fifth, the Commission considered that Hungary has violated the Treaty principles of the freedom to provide services (Article 56 TFEU) and the free movement of goods (Article 34 TFEU), by failing to demonstrate that the restrictions are duly justified, non-discriminatory, and proportionate. Sixth, the right to data protection laid down in the GDPR and Art. 8 Charter are violated by some of the contested provisions. Finally, the Commission believes that Hungary’s actions violated EU laws that apply to human dignity, freedom of expression and information, the right to respect privacy as well as the right to non-discrimination as enshrined respectively in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights. Because of the gravity of these violations, the contested provisions – argues the Commission – also violate the values laid down in Article 2 of TEU.

What is the function and purpose of the law in this case, especially in the context of the EU legal framework?

European and international human rights protections are supposed to provide broader guarantees for individuals than states are able to do. However, when EU laws protecting human rights are used to advance a social or political agenda that is not accepted by member states, this represents an abuse of the EU Commission’s authority. The breadth of LGBTIQ issues is based on a set of values that are not consistent with the Judeo-Christian values on which Western Civilization is built. This is also true of gender theories that claim gender and biological sex are not the same. 

Hungary has good reason and every right to exercise caution before allowing these ideas to be widely circulated among children in its educational institutions. In some Western countries, LGBTIQ theories and their promotion are responsible for waves of transgenderism among young girls in particular, resulting in irreversible damage and exceptionally high suicide rates. (See, for example, Abigail Shrier’s book: Irreversible Damage: The Transgender Craze Seducing Our Daughters.)

Since the EU’s infringement case against Hungary is ongoing, we do not know what the EU Court of Justice will have to say about the issues discussed here. This is highly relevant to the case because it touches on moral issues that inevitably affect the lives of individuals. And while the EU claims it is intervening in Hungary’s decision-making on behalf of pan-European values, we would argue that the EU is using pan-European principles of justice and equality to disguise what is in fact a set of ideas and values which, if allowed to take hold across Europe, will destroy the very foundations of our civilization.

Concluding thoughts

Hungary is standing up for values that are essential for civilization. It is protecting children from information they have no need of and no way of processing appropriately—information that is neither scientific nor moral by traditional Judeo-Christian standards. It is not in accordance with the best interests of the children and their mental, spiritual, moral and social development as promoted by the UN Convention of the Rights of the Child. The EU is unjustly using laws protecting equality as a cover for a radical social agenda that Hungary rightly recognizes as extremely damaging to its young people, families and society as a whole. In this field, the EU is overstepping its legitimate authority and abusing its power as a regional organization.

Thomas Cromwell was born on a Christian communal farm in Shropshire, England. He moved to America with his parents at age 14. After 13 years there, he spent 25 years in the Middle East as a journalist, publisher and peace-builder, studying the monotheistic faiths in their homelands and working to promote understanding among the diverse communities in the region. He traveled throughout the Communist world before the fall of the Soviet Union, learning first-hand about life under Marxist regimes. His work and curiosity about human civilization have taken him to 130 countries so far.

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