(November 19, 2024 – Court of Justice of the European Union, Luxembourg)
An infringement procedure against Hungary was launched nearly three years ago by the European Commission, and after lengthy negotiations without any results, it announced in July 2022 that it would refer its debate with Hungary to the Court of the European Union. 19 November has seen the hearing for the case, in front of a full court in session, with a high number of member states and the European Parliament as intervenors in the case, representing their own opinion – which is fairly rare in infringement cases.
According to the position of the Commission, the contested Hungarian law (the so-called Child Protection Law) violates not only the provisions of more of the laws of the European Union (e.g. the Audiovisual Media Services Directive, the E-Commerce Directive), but also various principles, namely the principle of freedom to provide services, or the right to data protection and certain notification obligations. The Brussels-based executive also argued that by violating the rights to human dignity, freedom of expression and information, private and family life and non-discrimination, the contested Hungarian law also violates the common values enshrined in Article 2 of the Treaty on the European Union (TEU), such as respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
Not only a usual “Commission v. member state” debate
The wide interest in the case is demonstrated by the fact that after the Commission filing in the case to the Court, an international campaign was launched to encourage member states to participate in this procedure, namely on the side of the European Commission – a very unusual idea related to infringement procedures, where member states are usually more interested in defending themselves against “Brussels”. As the result of this campaign, a total of sixteen member states (and the European Parliament) officially indicated their intention to participate in the proceeding as intervenors, supporting the arguments of the Commission. Fourteen of these member states were also present at the Court hearing, and the vast majority of them also addressed the Court, just as the European Parliament did.
Who thinks what about who is right?
The essential part of the arguments is fairly easy to conclude: all the intervening states’ position were clear on agreeing that the European Commission is right and that the adopted Hungarian law should be condemned, as it is a clear violation of the aforementioned EU laws, thus constitutes a violation of obligations deriving from the founding treaties.
However – and this easily becomes the really interesting thing about this case – as this is the first time that the European Commission has made the violation of the values under Article 2 TEU the subject of a major procedure, all the intervening states have addressed this subject intensely, with much more attention than the actual basic question of the case itself. And this may be important to emphasize because this is precisely the area in relation to which the Article 7 procedure is also underway currently against Hungary, and where the various procedures against member states may collide with each other.
Infringement procedure v. Article 7 procedure?
One of the central elements of the Hungarian official argument is that the current judicial procedure creates a parallel with the procedure under Article 7 TEU. Neither the Court, nor the intervening member states seemed to accept this argument, but they have made it clear in their contributions, that this is a realistic danger that they want to avoid. Hence, nearly all of them has drawn attention to the necessity of the violation of a specific legal obligation and to the proving of that so that an infringement could be based on that. It seems to be clear, that the European Commission was well prepared for this, since it also mentioned several exact EU pieces of legislation in its application and mentioned the violation of Article 2 as a supplementary problem to all of those. The member states present at the hearing seemed to want to reduce the future possibility of infringement proceedings being initiated solely on the basis of Article 2, therefore they argued intensely on a possible set of criteria to be fulfilled in future possible cases.
This is not only about some kind of self-defence, but also has a significance at a pan-European level, where the possibility of proceedings under Article 7 will actually be made impossible (and empty), if infringement proceedings will be possible to be initiated on the grounds of a breach of fundamental values embodied on Article 2 TEU. One question is, when the European Court of Justice will deliver a judgment in this case, it will cite Article 2 TEU as a reference point, or whether it will develop its case law on this later.
This way the case also has a strong political-constitutional dimension for the future, and it is not only whether the Orbán-government of Hungary will lose a simple lawsuit. If the Court finds that Hungary has violated the fundamental values under Article 2 TEU, this would inevitably have an effect on the ongoing Article 7 procedure, which is currently clogged in its first stage in front of the Council (a four-fifth majority of the member states is needed, but it has not been reached so far). A judgment like that would lead to a very strange situation: the Court would deliver a legally binding judicial decision on a question, which is currently subject to political consideration by the member states in the Council, seemingly unable to reach a compromise for four years now. It could provide strong confirmation and a basis for reference for member states critical towards the Hungarian government of Viktor Orbán and may push those who are currently hesitant to take the procedure to a new stage.
How will the proceeding continue and what comes next
The next step in the court proceedings in this infringement proceeding will be the adoption of the advocate general’s opinion, in which a preliminary legal position will be rendered to the Court. This is not binding on the Court in the case, but in almost all cases the subsequent judicial decision is in sync with that. The advocate general’s opinion is to be rendered during the next few months, and it is possible that the Court’s judgment will be rendered during the first half of 2025.
It is most likely that the Court will condemn the contested Hungarian legislation, but the interesting part will be what the Court will do with arguments based on the violation of Article 2 TEU. Is that violation going to constitute an infringement by itself, or will the Court follow the more careful argument of the Commission’s application? In the first case, it will set a precedent with currently uncalculable effect.
You can watch the broadcast of the hearing online here.