INFRINGEMENT PROCEDURE AND CONSUMER PROTECTION: A CONSERVATIVE’S TAKE ON A CHILDREN’S BOOK
Guest post by Shirin Giordano
Influencer Law Clinic series
1/26/20223 min read
In the December Infringement Package 2021 the European Commission has included Hungary in the section ‘Justice’ for having breached the EU’s founding values. Infringement procedures are a legal action taken by the European Commission against a Member State when the latter fails to comply with its obligations under EU law. The aim of this procedure is to ensure proper application of EU law for its citizens [1].
Although Hungary has featured multiple times in the December Infringement Package for lack of compliance in several areas of EU competence, a particularly interesting case lies in the reasoned opinion by the Commission on the issue of the obligation by Hungarian authorities to include a disclaimer in a children’s book.
The case arose when the Hungarian Consumer Protection Authority (HCPA) compelled the publisher of a children’s book to include a disclaimer stating that the representations and depiction in the book were forms of ‘behaviour deviating from traditional gender roles’. The reasoning behind the fine and decision by the Consumer Protection Authotity lies in the Hungarian government’s discriminatory stance against LGBTQI+ people, which has already been responsible for tensions between Hungary and the EU and of condemnations by EU officials. This attitude has been exemplified by the national rules which prohibit or limit access to anyone under 18 years of age to any content which portrays ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’. This new law has been the subject of an infringement procedure started by the Commission on July 15 2021 [2].
Wonderland is for Everyone
The book ‘Wonderland is for Everyone’ aims to include stories of people of multiple backgrounds and be a representation of diversity. The stories of this book that sparked a debate are a tale of a doe who is granted a wish to become a buck and a poem of a prince who marries another prince [3]. The government’s preoccupation seems to be that customers will be deceived by its outer appearance as a fairytale book which is contradicted by its content which they aim inappropriate for children. By having content that is ‘inconsistent with traditional gender roles’ the book is said to violate the law.
The Commissioner for the region of Pest has fined a bookshop 250,000 forints for a book that shows stories of a young boy with two mothers and a young girl with two fathers, and told the media that this book had violated rules on unfair commercial practises due to its content which ‘deviated from the norm’ [4].
The Commission considers that such warning would be a restriction on the freedom of expression of authors and book publishers, which is a right ensured by Article 11 of the EU Charter of Fundamental Rights [5]. Moreover, the decision by the Hungarian Authority represents a discrimination on the basis of sexual orientation which is unjustified and thus contrary to Article 21 of the EU Charter of Fundamental Rights [6]. Lastly, according to the Commission, the EU rules on unfair commercial practises found in Directive 2005/29/EC [7] have been incorrectly applied.
The Commission considered the reply from Hungary and concluded that the concerns have not been addressed as the Member State failed to justify its restriction on the rights of non-discrimination and freedom of expression. A reasoned opinion has thus been sent to Hungary, which has two months for a reply, as according to EU law.
So, is this a real case of consumer protection or an excuses for censorship?
[1] https://ec.europa.eu/commission/presscorner/detail/en/inf_21_6201
[2] https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3668
[5] European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT>
[6] European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT>
[7] Directive of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ 2149/22, <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32005L0029>