The debate over judicial activism in the European Union has long been treated as an exaggeration, but the Court of Justice of the European Union’s ruling in Commission v Hungary has put an end to that illusion.
This is no longer a question of legal interpretation. It is a question of power. At the center of the ruling is Hungary’s 2021 law restricting minors’ access to content depicting or promoting gender reassignment, homosexuality or gender identities different from the sex assigned at birth. Budapest called it child protection. Brussels called it discrimination. The court did not merely side with one view – it elevated that view into doctrine.
The logical conclusion is unmistakable: the court is no longer simply applying European law. It is defining what counts as legitimate policy in Europe.
From Law to Ideology
The crucial move in the ruling is not the verdict itself, but the reasoning behind it. The court anchored its decision in the EU’s “fundamental values”, transforming a concrete legal dispute into a question of ideological conformity.
That is a qualitative shift. Member States are no longer judged only on whether they comply with clearly defined rules, but on whether their legislation aligns with a particular vision of European values – a vision they do not control and cannot meaningfully contest.
Hungary argued that its law was intended to protect minors. The court dismissed that claim and introduced a different standard: that restricting such content renders minority groups “legally invisible”.
The language itself is revealing. The court adopts terms such as “cisgender” to describe the majority population, while framing restrictions as discriminatory because they treat so-called “non-cisgender” identities differently. This is not settled legal terminology, but language drawn from contemporary ideological frameworks and elevated into judicial reasoning.
Sovereignty Without Substance
The court insists that Member States retain discretion in areas such as education and child protection. Formally, that remains true. Substantively, it does not.
Any distinction drawn by a national government can be reinterpreted as discrimination. Any attempt to prioritize one set of concerns – cultural, social or moral – can be overridden by a competing interpretation of rights.
The result is sovereignty in name only. Governments remain responsible for policy, but the limits of that policy are set elsewhere.
The Market as a Lever
The ruling also invokes internal market law, arguing that Hungary’s restrictions interfere with the free movement of services.
This is not incidental. It is a well-worn strategy. Where direct authority is limited, market rules provide an entry point, and questions of culture and education are reframed as questions of cross-border services.
What begins as economic integration becomes a tool for regulating topics that were never meant to fall under supranational control.
A British Warning, Ignored
For years, critics in the United Kingdom warned that this is precisely how the system would evolve. Their argument was simple: laws should be made by those accountable to voters, not by judges operating beyond national democratic reach.
That argument was dismissed as populist or alarmist. It now looks like a straightforward description of what has happened.
The Hungarian ruling confirms what British critics feared: that the balance between courts and politics has shifted – and continues to shift – in one direction.
Expanding Categories, Expanding Power
There is a deeper issue running through the judgment, one that is rarely addressed openly. The court’s reasoning relies on categories that are neither fixed nor clearly defined.
Terms such as LGBTI are treated as stable legal constructs, even though they are, in reality, evolving umbrella categories shaped by political and academic developments. Their scope is not settled.
Yet once these categories enter legal reasoning, they become the basis for binding obligations. The implications are obvious. If the categories themselves are open-ended, so too are the legal standards built upon them.
This dynamic is already visible in adjacent debates. In Canada, for example, public and political debate has already seen the emergence of increasingly complex identity frameworks, reflected in ever-expanding acronyms, such as “MMIWG2SLGBTQQIA+”. The acronym stands for Missing and Murdered Indigenous Women, Girls, Two-Spirit People, Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, Intersex and Asexual+.
Furthermore, in parts of the academic literature, terms such as “minor-attracted persons” (MAPs) have been introduced as alternative descriptors in highly sensitive contexts. The concept is controversial and not recognized in law. But its emergence illustrates a broader trend: once identity-based frameworks are adopted, they tend to expand.
The point is not to conflate different phenomena. It is to recognize the mechanism. When courts rely on evolving categories, they do not merely apply them – they legitimize and entrench them.
Parental Authority Under Pressure
The ruling also raises a more fundamental issue that receives less attention: the role of parents.
In most European legal traditions, parents are understood to have primary responsibility for the upbringing and moral development of their children. That includes decisions about what children are exposed to and when.
Yet the logic of the judgment cuts against that principle. If restricting certain types of content is treated as discrimination or a violation of fundamental rights, then the space for parental choice narrows accordingly.
What is framed as the protection of rights can, in practice, limit the ability of families to make decisions about their own children.
National Identity, Redefined
Hungary argued that its legislation reflected its national identity and value system – a concept explicitly recognized in EU treaties.
The court rejected that argument in substance. National identity, in the court’s interpretation, cannot be invoked to justify policies that conflict with the Union’s fundamental values.
That position carries far-reaching implications. It means that national identity is no longer defined primarily by Member States themselves, but only within boundaries set at the European level.
In effect, identity becomes conditional: it is protected only insofar as it aligns with a broader, externally defined framework.
Who Governs Europe?
At its core, the ruling raises a question that cannot be avoided: who governs Europe?
In theory, the Union is based on treaties agreed by Member States. In practice, those treaties are interpreted – and increasingly expanded – by the court.
This is not a minor institutional detail. It is a shift in where authority lies. Decisions about the limits of national policy – about what can be taught, shown or restricted – are no longer confined to national political processes.
They are being set by judges.
A Precedent That Will Spread
The Hungarian case will not remain an isolated controversy. By linking national legislation directly to the EU’s foundational values, the court has created a template for future interventions.
Any deviation from the prevailing interpretation of those values can now be challenged. The scope for doing so is, by definition, broad.
What follows is not difficult to predict: more rulings, more conflicts and a steadily narrowing space for national variation.
The Real Conflict
The real issue is no longer whether Europe has shared values. It is whether those values can be defined and enforced in a way that overrides national political choices.
The court has answered that question in the affirmative.
The remaining question is whether Member States are prepared to accept that answer – and what they will do if they are not.