Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 12 February 2026 (1)
Case C‑829/24
European Commission
v
Hungary
( Failure of a Member State to fulfil obligations – Article 49 TFEU – Freedom of establishment – Article 56 TFEU – Freedom to provide services – Article 63 TFEU – Free movement of capital – Directive
2000/31/EC on electronic commerce – Article 3 – Directive
2006/123/EC on services in the internal market – Articles 14, 16 and 19 – Regulation (EU) 2016/679 on general data protection – Articles 5, 6, 9 and 10 – Charter of Fundamental Rights of the European Union – Article 11 – Right to freedom of expression – Article 12 – Right to freedom of association – Article 7 – Right to respect for private life – Article 8 – Right to protection of personal data – Article 47 – Right to an effective remedy – Article 48 – Right to protection of legal privilege – Right to avoid self-incrimination – Hungarian law on the protection of national sovereignty – Establishment of a Sovereignty Protection Office – Power to investigate, forward information and make assessments and proposals – Publication of annual reports – Interest representation activities – Information manipulation and disinformation activities – Activities aimed at influencing democratic discourse and State and social decision-making processes – Threat to or undermining of national sovereignty – Activities aimed at influencing the outcome of elections and the will of voters using support from abroad – Article 4(2) TEU – Respect for national identity and national security – Overriding general interest )
Table of contents
I.
Introduction
II.
Legal framework
A.
European Union law
1.
Primary EU law
2.
Secondary law
(a)
Directive on electronic commerce
(b)
The ‘Services’ Directive
(c)
The GDPR
B.
National law
1.
Law on the Protection of National Sovereignty
2.
Other relevant laws
III.
The pre-litigation procedure
IV.
Forms of order sought and procedure before the Court
V.
Assessment
A.
Admissibility of the additional pleas in law
B.
The pleas in law alleging that the Union lacks competence and the Court lacks jurisdiction
1.
The plea in law alleging that the Union lacks competence in relation to rules protecting national sovereignty
2.
The plea in law alleging a lack of competence as there is no impact on the implementation of EU law
3.
The alleged premature nature of the proceedings in the absence of sufficient legal effects
C.
Substance
1.
Infringement of the freedom to provide services guaranteed by Article 16 of the ‘Services’ Directive
(a)
Scope
(b)
Requirements introduced by the contested law
(c)
The requirements introduced by the contested law are not general administrative constraints
(d)
Non-discrimination, necessity and proportionality
(1)
The existence of direct or indirect discrimination (point (a) of the third subparagraph of Article 16(1) of the ‘Services’ Directive)
(2)
Necessity and the existence of a sufficiently precise legal basis (point (b) of the third subparagraph of Article 16(1) of the ‘Services’ Directive)
(3)
Proportionality (point (c) of the third subparagraph of Article 16(1) of the ‘Services’ Directive)
(i)
Suitability for achieving the legitimate objective pursued
(ii)
Necessity
(iii)
Proportionality
(iv)
Interim conclusion
2.
Infringement of the freedom to receive services guaranteed by Article 19 of the ‘Services’ Directive
3.
Infringement of the freedom of establishment guaranteed by Article 14 of the ‘Services’ Directive
4.
Infringement of the free movement of information society services guaranteed by Article 3 of the Directive on electronic commerce
5.
Infringement of the freedom to provide services and of the freedom of establishment guaranteed by Articles 49 and 56 TFEU
6.
Infringement of the free movement of capital guaranteed by Article 63 TFEU
(a)
The existence of a restriction
(b)
Justification
7.
Infringement of the provisions of the Charter
(a)
Complaints and applicability of the provisions of the Charter
(b)
Interference with the freedom of expression and information guaranteed by Article 11 of the Charter
(c)
Interference with the freedom of association guaranteed by Article 12 of the Charter
(d)
Interference with the right to respect for private and family life guaranteed by Article 7 of the Charter
(e)
Justification for and proportionality of interference with the right to respect for private and family life, the freedom of expression and information and the freedom of association
(f)
Infringement of the obligation of professional secrecy between lawyer and client for the purposes of Article 7 read in conjunction with Article 47 of the Charter
(g)
Infringement of the right to avoid self-incrimination for the purposes of Article 48 of the Charter
8.
Infringement of the GDPR and of Articles 7 and 8 of the Charter
(a)
Processing of personal data within the meaning of the GDPR
(b)
Lawfulness of the processing of personal data founded on an appropriate legal basis
(1)
Appropriate legal basis for the processing
(2)
Lack of precision of the contested law
(3)
Proportionality
9.
Interim conclusion
VI.
Costs
VII.
Conclusion
I.      Introduction
1.        By the present action, the European Commission asks the Court to declare that Hungary has failed to fulfil its obligations under EU law in several respects by adopting, on 12 December 2023, the a nemzeti szuverenitás védelméről
szóló 2023. évi LXXXVIII. törvény (2) (Law No LXXXVIII of 2023 on the protection of national sovereignty) (‘the contested law’).
2.        These proceedings concern the fundamental and very topical question of how and to what extent a democratic society may legitimately protect itself against the actions of foreign actors exerting inappropriate or manipulative influence, such as disinformation, including by means of financial support, on domestic democratic decision-making processes, including national elections. (3) This is precisely the justification which Hungary argues is behind the adoption of the contested law, which establishes a connection between such unlawful foreign interference and threats to national sovereignty. It contends inter alia that it has exclusive competence, on the basis of its sovereignty and its national identity and national security, within the meaning of Article 4(2) TEU, to enact and implement such legislation. At the same time, it does not accept that the Union has competence in such matters and denies that that legislation has any impact on the implementation of and the compliance with EU law.
3.        The contested law establishes a Sovereignty Protection Office (‘the Office’), which is independent and responsible for detecting activities liable to jeopardise or threaten national sovereignty. Specifically, it is meant to identify the organisations or persons whose activities, in particular those conducted using foreign support, are liable to influence democratic processes and the will of voters. Such activities therefore encompass exchanges of communications and of information, as well as the free expression of opinions at different levels of the democratic process. In order to monitor and assess those activities, the Office enjoys broad discretion and has powers to investigate the organisations and persons concerned, the exercise of which is not subject to any judicial review. In addition, the Office is authorised to forward the information and data gathered using those powers to the competent national authorities so that other measures may be taken, including, where appropriate, punitive measures. Lastly, the Office is empowered to publish the findings of its investigations and annual reports setting out its assessment of the activities which it deems threaten or undermine national sovereignty.
4.        Many of the legal bases of the contested law conceived to that end, for example that regarding the concept of ‘activities aimed at influencing democratic discourse and State and social decision-making processes’, (4) are vague and broad in scope. It was that vast scope in particular which prompted the Commission to investigate the compatibility of that law with EU law and to bring the present action, which is directed primarily against the Office’s powers.
5.        The action is essentially based on three series of pleas in law or complaints. Thus, the Commission relies, first, on infringement of the provisions of primary and secondary law governing the fundamental freedoms, including the freedom to provide services, the freedom of establishment and the free movement of capital; secondly, on infringement of several provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’); and, thirdly, on infringement of certain provisions of the General Data Protection Regulation (GDPR), (5) read in conjunction with Article 8 of the Charter.
II.    Legal framework
A.      European Union law
1.      Primary EU law
6.        With regard to primary EU law, the proceedings concern a possible infringement by Hungary of the fundamental freedoms provided for in Articles 49, 52, 56, 62, 63 and 65 TFEU and of the fundamental rights guaranteed by Article 7 (Respect for private and family life), Article 8 (Protection of personal data), Article 11 (Freedom of expression and information), Article 12 (Freedom of assembly and of association), Article 47 (Right to an effective remedy and to a fair trial) and Article 48 (Presumption of innocence and right of defence) of the Charter. As its primary line of defence, Hungary relies, inter alia, on the protection of its national identity and national security, within the meaning of Article 4(2) TEU.
2.      Secondary EU law
(a)    Directive on electronic commerce
7.        Article 3 of Directive 2000/31/EC on electronic commerce, (6) entitled ‘Internal market’, states inter alia:
‘…
2.      Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
…
4.      Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:
…
(b)      before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:
–        asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,
–        notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.
…’
(b)    The ‘Services’ Directive
8.        Article 16 of Directive 2006/123/EC on services in the internal market, (7) entitled ‘Freedom to provide services’, provides, inter alia, in the third subparagraph of paragraph 1 thereof:
‘Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles:
(a)      non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established;
(b)      necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment;
(c)      proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective.’
9.        Under Article 19 of the ‘Services’ Directive, entitled ‘Prohibited restrictions’:
‘Member States may not impose on a recipient requirements which restrict the use of a service supplied by a provider established in another Member State, in particular the following requirements:
(a)      an obligation to obtain authorisation from or to make a declaration to their competent authorities;
(b)      discriminatory limits on the grant of financial assistance by reason of the fact that the provider is established in another Member State or by reason of the location of the place at which the service is provided.’
(c)    The GDPR
10.      Article 5 of the GDPR lays down the ‘principles relating to processing of personal data’.
11.      Article 6 of the GDPR governs the ‘lawfulness of processing’.
B.      National law
1.      The Law on the Protection of National Sovereignty
12.      The preamble to the contested law states that ‘illegal attacks on the sovereignty of Hungary are becoming more and more frequent’, in particular ‘manifest attempts at exerting influence’ by foreign organisations and persons seeking to assert their own interests to the detriment, inter alia, of Hungarian interests. By way of example, reference is made to an attempt to influence the 2022 election campaign using funds received directly from abroad, with the prime ministerial candidate for the united opposition himself declaring that the opposition had ‘received millions of United States dollars from the United States of America’. Thus, in spring 2022, the united opposition circumvented the prohibition on political parties accepting foreign support ‘by using funds from abroad channelled through its civil society organisations engaged in political activities and its commercial companies’. In addition, both Hungary’s sovereignty and its national security would be undermined if political power were to fall into the hands of persons or organisations who are dependent on a foreign power, organisation or individual. The objective of the contested law is therefore ‘to guarantee democratic discourse and the transparency of State and social decision-making processes, to make public foreign interference attempts and to prevent foreign interference attempts’ of that kind. For that reason, it is ‘necessary to establish an independent body responsible for investigating such attempts and penalising, under criminal law, the use of foreign support in the context of elections’.
13.      Paragraph 1 of the contested law provides:
‘(1)      The
[Office] shall be an autonomous administrative organ of the State established pursuant to Article
R(4) of the Magyarország Alaptörvénye [(Hungarian Basic Law)] in order to protect the constitutional identity, which shall operate in accordance with the detailed rules and procedures laid down in this Law and carry out analytical, assessment, proposal-making and investigative activities.
(2)      The Office shall be independent and subject only to rules of law, shall not be instructed by any other person or body and shall perform its duties independently of any other body and free from any interference by any other institution, body, political party, company, association, or legal or natural person. The duties of the Office may be assigned to it only by law.
…’
14.      Paragraph 2 of the contested law provides inter alia:
‘In the context of its analytical, assessment and proposal-making activities, the Office:
(a)      shall develop and apply a sovereignty risk assessment methodology;
(b)      shall analyse respect for national sovereignty by assessing information and data obtained from investigated bodies, State and local government organs as well as other organisations or persons concerned in a particular case;
…
(e)      shall draw up an annual national sovereignty report;
…’
15.      Paragraph 3 of the contested law states inter alia:
‘In the context of its investigative role, the Office:
(a)      shall identify and investigate
(aa)      interest representation activities, with the exception of diplomatic and foreign missions, and professional interest representation organisations,
(ab)      information manipulation and disinformation activities,
(ac)      activities aimed at influencing democratic discourse and State and social decision-making processes, including activities intended to influence decision-making by persons who exercise public authority responsibilities,
carried out in the interest of other States and of foreign bodies, organisations and natural persons, irrespective of their legal status,
if they are capable of harming or jeopardising the sovereignty of Hungary;
(b)      shall identify and investigate organisations whose activities, carried out with support from abroad, may exert influence on the outcome of elections;
(c)      shall identify and investigate organisations which carry out activities aimed at influencing the will of voters using support from abroad or which support such activities.’
16.      Under Paragraph 6 of the contested law:
‘(1)      In connection with the tasks assigned to it pursuant to Paragraph 3, the Office shall investigate individual cases and publish on its website the outcome of the investigations which it has conducted, including the facts established during the investigations, the findings made on the basis of those investigations and the conclusions drawn by it.
(2)      In connection with the tasks assigned to it pursuant to Paragraph 3, the Office shall prepare an annual national sovereignty report, which shall include the following:
(a)      an analysis of the legislation pertaining to national sovereignty, of the effectiveness of that legislation’s application, of the issues encountered in its implementation and application, and of legal and administrative practice;
(b)      a sovereignty risk assessment prepared on the basis of the sovereignty risk assessment methodology, which identifies the risks and issues to be addressed in relation to national sovereignty, the means available to address them, deficiencies in addressing such risks and issues, and the necessary solutions;
(c)      recommendations for the organs vested with relevant functions and powers;
(d)      an evaluation of how the organs vested with relevant functions and powers have taken into account previous reports and recommendations;
(e)      a summary of the activities and the operation of the Office over the previous year.
(3)      The annual national sovereignty report for the previous calendar year shall be made publicly available on the Office’s website no later than 30 June of each year.
(4)      At the time of its publication, the Office shall forward the annual national sovereignty report, for information, to the National Security Standing Committee of the National Assembly and to the Government.
(5)      Within three months of the publication of the annual national sovereignty report, the Government shall set out, in its reply to the Office, how it intends to address the conclusions of the annual national sovereignty report.
(6)      The Office’s report, made public in accordance with subparagraphs
1 and 3, shall not include personal data, classified information, secrets protected by law or secrets related to the performance of duties, with the exception of personal data which are in the public interest.
(7)      A legal remedy shall not be available against the Office’s report made public in accordance with subparagraphs
1 and 3.
(8)      Before publishing the report referred to in subparagraphs
1 and 3, the Office shall forward the findings of its investigations to the organisations whose activities, on the basis of the investigation conducted, justify those organisations being included in the Office’s public report. Investigated organisations may submit comments on the Office’s findings within 15 days of the service of those findings. The Office shall reply to the comments in writing within 30 days of their receipt. The Office shall be obliged to state the reasons why it refused to take the comments into account.’
17.      Under Chapter
3, entitled ‘Investigation procedure of the … Office’, Paragraph 7 of the contested law provides inter alia:
‘(1)      In the context of the investigation provided for in Paragraph 3, the Office may ask the investigated organisation to provide information and data, in accordance with Paragraph 8.
(2)      In connection with its investigations, the Office may request information and data from any State or local government body concerned by the case in question and from any other organisation or person concerned by that case, in accordance with Paragraph 8.
(3)      The investigated organisation and the requested State or local government body, organisation or person (jointly, “the person required to cooperate”) shall be obliged to comply with the Office’s request within the period determined by the Office. That period may not be less than 15 days from the date of the request.
(4)      If the person required to cooperate fails to comply, or does so belatedly, without good reason, with its obligation to cooperate, the Office shall take note of that fact in its investigation and shall include a special reference in that regard in its annual report.
…’
18.      Paragraph 8 of the contested law states:
(1)      In the course of the investigative procedure conducted pursuant to this Chapter, the Office may, in accordance with the law, carry out the following acts of an evidentiary nature:
(a)      access and make copies of all data that may be connected with the subject matter of the investigation which are managed by the investigated organisation and by the State or the local government body concerned by the case, and examine and request copies of all those documents, including documents stored on electronic storage media;
(b)      request written or oral clarifications from the investigated organisation, any member of staff of the investigated organisation or the State or local government body concerned by a particular case;
(c)      request written or oral clarifications from any organisation or person that may be connected to the subject matter of the investigation, and also request copies of all data or documents, including documents stored on electronic storage media, that may be connected with the subject matter of the investigation.
(2)      The Office’s investigative procedure under this Chapter shall not constitute a procedure by an administrative authority and administrative proceedings may not be initiated in relation to the activities conducted by the Office under this Chapter.’
19.      Under Paragraph 9(1) of the contested law:
‘In relation to the activities referred to in Paragraphs 7 and 8, the Office shall duly apply Paragraph 27(1) and (3) of the az alapvető jogok biztosáról szóló 2011. évi CXI. törvény [(Law No CXI of 2011 on the Commissioner for Fundamental Rights) (“the Law on the Commissioner for Fundamental Rights”)].’
20.      Paragraph 11 of the contested law provides:
‘If the Office establishes facts or circumstances which may give rise to the initiation or the conduct of infringement proceedings, criminal proceedings, administrative proceedings or other proceedings, it shall notify the body authorised to conduct such proceedings of the facts and information of which it is aware.’
21.      Paragraph 12 of the contested law provides:
‘The President of the Office may ask the National Security Standing Committee of the National Assembly to examine the report referred to in Paragraph 6(1) and conduct a hearing of the person in charge of the investigated organisation if:
(a)      the investigated organisation fails to provide information within the period laid down pursuant to Paragraph 7(3); or
(b)      this is justified by the nature or the gravity of the case.’
22.      Paragraph 32 of the contested law inserted Paragraph 350/A, entitled ‘Unlawful influence on the will of voters’, into the Büntető Törvénykönyvről szóló 2012 C. törvény (8) (Law No C of 2012 on the Criminal Code) (‘the Criminal Code’) and amended Paragraph 459(1) of the Criminal Code by introducing a definition of the concept of ‘prohibited foreign support’.
23.      Paragraph 33 of the contested law inserted or amended a number of provisions of the a választási eljárásról szóló 2013. évi XXXVI. törvény (9) (Law No XXXVI of 2013 on electoral procedure) (‘the Law on electoral procedure’), including a definition of the concept of ‘foreign support’.
2.      Other relevant laws
24.      The proceedings also concern the implementation of Paragraph 167 of the a büntetőeljárásról szóló 2017. évi XC. törvény (10) (Law No XC of 2017 on criminal procedure) (‘the Code of Criminal Procedure’) concerning the free use of evidence; Paragraph 27(3) of the az alapvető jogok biztosáról szóló 2011. évi CXI. törvény (11) (Law No CXI of 2011 on the Commissioner for Fundamental Rights) (‘the Law on the Commissioner for Fundamental Rights’); Paragraph 2(1) of the az információs önrendelkezési jogról és az információszabadságról szóló 2011. évi CXII. törvény (12) (Law No CXII of 2011 on self-determination in matters relating to information and the freedom of information) (‘the Law on information’); and Paragraphs 9 and 13 of the az ügyvédi tevékenységről szóló 2017. évi LXXVIII. törvény (13) (Law No LXXVIII of 2017 on the profession of lawyer) (‘the Law on the profession of lawyer’).
III. The pre-litigation procedure
25.      On 7 February 2024, the Commission sent a letter of formal notice to Hungary stating its view that the contested law infringed, inter alia, the values of the European Union (Article 2 TEU), the principle of representative democracy (Article 10 TEU), the right to vote in elections to the European Parliament (Article 14(3) TEU), the right to vote in municipal elections (Article 22 TFEU), the fundamental freedoms (Articles 49, 56 and 63 TFEU), the respect for private and family life (Article 7 of the Charter), the protection of personal data (Article 8 of the Charter), the freedom of expression and information (Article 11 of the Charter), the freedom of assembly and of association (Article 12 of the Charter), the right to vote and to stand as a candidate in elections to the Parliament (Article 39 of the Charter), the right to vote and to stand as a candidate at municipal elections (Article 40 of the Charter), the right to an effective remedy and the right to legal privilege (Article 7 read in conjunction with Article 47 of the Charter), the right to avoid self-incrimination (Article 48 of the Charter), the freedom to provide audiovisual media services (Article 3 of Directive 2010/13/EU on audiovisual media services (14)), the free movement of information society services (Article 3 of the Directive on electronic commerce), the freedom to provide services and the freedom of establishment guaranteed by Articles 14, 16 and 19 of the ‘Services’
Directive, and several provisions of the GDPR.
26.      On 11 April 2024, Hungary replied to the letter of formal notice, contesting the merits of the assessments contained therein.
27.      On 23 May 2024, the Commission sent a reasoned opinion, under Article 258 TFEU, to Hungary, in which it took the view, in essence, that a number of provisions of the contested law, essentially relating to the powers of the Office established by that law, infringed Articles 49, 56 and 63 TFEU, Articles 7, 8, 11, 12, 47 and 48 of the Charter, Article 3 of the Audiovisual Media Services Directive, Article 3 of the Directive on electronic commerce, Articles 14, 16 and 19 of the ‘Services’
Directive and Articles 5, 6, 9 and 10 of the GDPR. However, the Commission definitively dropped its claims that Hungary had infringed the values of the European Union, in particular that of democracy, and the rights to vote and to stand as a candidate (Article 2, Article 10 and Article 14(3) TEU, Article 22 TFEU and Articles 39 and 40 of the Charter).
28.      On 31 July 2024, Hungary replied to the reasoned opinion, contesting the merits of the complaints set out therein.
IV.    Forms of order sought and procedure before the Court
29.      By document lodged at the Registry of the Court of Justice on 4 December 2024, the Commission brought the present action.
30.      By document lodged at the Court Registry on the same day, the Commission requested the Court to determine the present case pursuant to the expedited procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 133 of the Rules of Procedure of the Court of Justice.
31.      By order of the President of the Court of 12 February 2025, the case is to be determined pursuant to that expedited procedure.
32.      The Parliament, the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Kingdom of Spain, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the Kingdom of Norway were granted leave to intervene in the proceedings in support of the form of order sought by the Commission.
33.      The Commission, supported by the interveners, claims that the Court should:
–        declare that, by adopting the contested law, Hungary has infringed Articles 49, 56 and 63 TFEU, Article 3 of the Directive on electronic commerce, Articles 14, 16 and 19 of the ‘Services’ Directive, Articles 7, 8, 11, 12, 47 and 48 of the Charter and Articles 5, 6, 9 and 10 of the GDPR;
–        order Hungary to pay the costs.
34.      Hungary contends that the Court should:
–        dismiss the action;
–        order the Commission to pay the costs.
35.      A hearing was held on 16 September 2025 at which the oral arguments of the parties and the interveners and their answers to questions put by the Court were heard.
V.      Assessment
36.      Since some of the interveners have raised pleas in law in addition to those put forward by the Commission in its application, I must first assess their admissibility (Section
A).
37.      Secondly, a ruling must be made on the pleas in law alleging that the Union lacks competence in matters relating to the protection of national sovereignty, including the claim that the Court lacks jurisdiction to hear and determine the present action (Section
B). I will examine the merits of Hungary’s main horizontal argument that the Union’s lack of competence stems from its obligation to respect inter alia national identity and national security, pursuant to Article 4(2) TEU (Subsection
1). Next, it is necessary to assess the second horizontal argument raised by Hungary, namely that the contested law does not govern economic activities, in particular those covered by the exercise of the fundamental freedoms, and therefore falls outside the scope of EU law (Subsection
2).
38.      Thirdly (Section
C), I will consider whether there is an infringement of the relevant provisions of the primary and secondary law governing the fundamental freedoms (Subsections
1 to 6), of the Charter (Subsection
7) and of the GDPR read in conjunction with Article 8 of the Charter (Subsection
8).
A.      Admissibility of the additional pleas in law
39.      Whilst supporting the heads of claim raised and the pleas in law put forward by the Commission, the Parliament, supported by the Republic of Lithuania, the Kingdom of Belgium, the Portuguese Republic and, in part, the Czech Republic, asks the Court to find also that, by adopting the contested law, Hungary has infringed, inter alia, the values of the European Union (Article 2 TEU) and the right to an effective remedy (Article 47 of the Charter).
40.      It must be stated that the request to raise and assess any infringement by Hungary of the values of the European Union within the meaning of Article 2 TEU (15) is inadmissible. In the absence of an objection formulated to that effect in the application initiating proceedings, such a plea does not form part of the subject matter of the proceedings, and nor can it be examined by the Court of its own motion. As is apparent from points 25 to 33 of this Opinion, the Commission did not stand by its initial view, as set out in its letter of formal notice, that Hungary has infringed Article 2 TEU, rather it stepped back from that view in its reasoned opinion. The subject matter of an action for failure to fulfil obligations is essentially delimited by the reasoned opinion. (16)
41.      Under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, read in conjunction with the first sentence of Article 129(1) of the Rules of Procedure, an application to intervene is to be limited to supporting the form of order sought by one of the parties. In addition, in accordance with Article 129(3) of the Rules of Procedure, the intervener must accept the case as he or she finds it at the time of his or her intervention. Accordingly, an intervener cannot rely on new pleas in law, distinct from those relied on by the applicant. (17)
42.      In that regard, the Parliament cannot rely on the judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), (18) to justify the Court examining a potential infringement of Article 2 TEU. That judgment does not rule on such a distinct plea in law, but only – incidentally – on the link between Article 2 TEU and Article 19 TEU in so far as the latter provision gives concrete expression to the value of the rule of law. (19) However, in the present case, the Commission does not rely on infringement of another provision of the EU Treaty which exhibits a comparable link to Article 2 TEU.
43.      Similarly, the alleged infringement of the principles of representative democracy (Article 10 TEU) and of non-discrimination with regard to nationality (first paragraph of Article 18 TFEU) raised, inter alia, by the Republic of Lithuania, and the alleged infringement of citizenship of the Union and of the rights to vote and to stand as a candidate (Article 20(2) and Article 22 TFEU), relied on by the Federal Republic of Germany at the hearing, do not form part of the subject matter of the proceedings. Those pleas must therefore also be declared inadmissible.
44.      By contrast, in so far as the Parliament, the Czech Republic and the Republic of Lithuania allege breach of the right to an effective remedy, enshrined in Article 47 of the Charter, that complaint is admissible inasmuch as it seeks to support the form of order sought by the Commission and the objections raised by it. Such an infringement is explicitly mentioned in the first head of claim of the application (see point 33 of this Opinion) and forms the subject of the complaint alleging infringement of the legal privilege between a lawyer and his or her client (Article 7 read in conjunction with Article 47 of the Charter).
B.      The pleas in law alleging that the Union lacks competence and the Court lacks jurisdiction
45.      Hungary disputes all the pleas in law and complaints raised by the Commission, inter alia, in the light of its national identity and national security, within the meaning of Article 4(2) TEU, and of its exclusive competence to adopt legislation intended to protect its sovereignty. In its view, it therefore follows that the contested law falls outside both the scope of EU law and the competence of the Union. According to Hungary, the protective measures adopted pursuant to that law concern only activities capable of threatening or undermining its sovereignty engaged in by the persons or organisations concerned, and not the economic activities which they may legitimately carry on in accordance with the fundamental freedoms or the relevant secondary EU law.
46.      I will consider, in the first place, Hungary’s main argument that its sovereignty enjoys broad protection against interference on the part of the Union under, inter alia, Article 4(2) TEU. That provision exempts national rules intended to protect the sovereignty of the Member States both from the review by the bodies and the application of the rules of the European Union (Subsection
1). In the second place, I will examine whether, in accordance with the pleas in law and complaints raised by the Commission, inter alia, Paragraphs 3, 6, 7 and 12 of the contested law (also ‘the contested provisions’), which concern the activities that may be the subject of the Office’s powers of investigation, assessment and disclosure, are capable of hampering the implementation of EU rules of law (Subsection
2). In the third place, I will assess whether the present proceedings may be premature (Subsection
3).
1.      The plea in law alleging that the Union lacks competence in relation to rules protecting national sovereignty
47.      Article 4(2) TEU requires that the Union respects, inter alia, the national identity and national security of the Member States.
48.      Since those elements form an integral part of national sovereignty, Hungary infers from that fact, in essence, first, that that provision protects the Member States from interference with their sovereignty by the European Union by imposing on the latter limits on the exercise of its competences. Secondly, Hungary takes the view that, pursuant to Articles 4 and 5 TEU (which lay down, inter alia, the principles of conferral and of subsidiarity), the Member States have exclusive competence to legislate for the purposes of protecting their national sovereignty.
49.      However, it seems clear to me that a Member State cannot evade the application of and compliance with EU law simply by relying on Article 4(2) TEU for the purposes of protecting its national identity, national security or national sovereignty, (20) and even less so where the protective measures adopted by it are capable of interfering with the implementation of EU rules of law adopted on the basis of a competence, albeit only a shared competence, conferred on the Union.
50.      In addition, as the Commission argues in the present case, the contested provisions and the measures that can be adopted on their basis are liable to undermine a number of EU rules of law. The power conferred on the Union to lay down those rules stems, inter alia, from Articles 53 and 62 TFEU (directives seeking to coordinate legislation on the freedom of establishment and the freedom to provide services), Article 115 TFEU (approximation of laws directly affecting the establishment or the functioning of the internal market) and Article 16 TFEU (protection of personal data).
51.      In that regard, Hungary cannot legitimately claim that the activities covered by the contested law are only those intended to jeopardise national sovereignty and that, therefore, activities protected by EU law are a priori excluded from the scope of that law. The Office can find that the activity at issue has an allegedly illegitimate objective only on completion of its investigation. It cannot therefore prevent an investigation from also being initiated against economic activities covered by the exercise of the fundamental freedoms. This is especially the case since it appears impossible to draw, at the outset, a clear and precise distinction between lawful and unlawful activities in that regard, particularly where they are part of inseparable overall conduct.
52.      The distinction drawn by Hungary between activities pursuing illegitimate objectives for the purposes of the contested law and activities protected by the fundamental freedoms of the Union is therefore impracticable.
53.      The plea alleging a lack of competence based on Article 4(2) TEU must therefore be rejected as unfounded.
2.      The plea in law alleging a lack of competence as there is no impact on the implementation of EU law
54.      Hungary considers that the contested provisions and the measures adopted on their basis cannot restrict fundamental freedoms or undermine the implementation of EU rules of law. First, the purpose of those provisions and measures is not to regulate the economic activities of market operators, but simply to protect national sovereignty from unlawful foreign interference. (21) Secondly, since they are not legally binding and do not impose penalties, the measures at issue cannot cause harm to individuals or adversely affect their rights guaranteed by the EU legal order.
55.      That plea cannot succeed in my view.
56.      It is true, in particular, that the concepts of interest representation activities, information manipulation and disinformation activities and activities aimed at influencing democratic discourse and State and social decision-making processes, within the meaning of Paragraph 3 of the contested law, as well as the Office’s powers under Paragraphs 6, 7, 8 and 12 of that law, concern prima facie political rather than economic activities.
57.      However, those provisions may affect the pursuit of cross-border economic activities falling within the scope of the fundamental freedoms.
58.      This is due, inter alia, to the non-specific nature of the concept of ‘activities’ carried out in the interest of other States and of foreign bodies, organisations and natural persons contained in Paragraph 3 of the contested law which may be investigated by the Office. The Office has broad discretion as regards the opening of an investigation in that regard, and the exercise of that power is not open to administrative or judicial review.(22) Pursuant to Paragraphs 7 and 8 of that law, the Office is authorised to adopt investigative measures in respect of many organisations and persons, whose various activities, including economic activities, are liable to undermine or jeopardise Hungarian sovereignty. Those organisations and persons may be active in various industries, including the media, information and communications sectors, which are, at the very least in part, governed by EU law.
59.      Thus, alleged ‘information manipulation and disinformation activities’, within the meaning of Paragraph 3(a)(ab) of the contested law, can be activities of providers of information or communications services supplied for a fee, such as educational, cultural, audiovisual or media services supplied for remuneration, and can therefore be economic in nature. (23) Similarly, any stance taken or communication or provision of information made for remuneration that is intended to contribute to the public debate on issues of general interest or in the context of a public forum, where they are connected with democratic discourse, State and social decision-making processes or elections, may be categorised as an activity covered by Paragraph 3(a)(ac), (b) or (c) of that law (‘activities aimed at influencing democratic discourse and State and social decision-making processes’ and ‘activities … with support from abroad’ which may ‘exert influence on the outcome of elections’ or are ‘aimed at influencing the will of voters’). (24)
60.      In the light of their broad framing, ‘activities’ carried out in the interest of other States and of foreign bodies, organisations and natural persons within the meaning of Paragraph 3 of the contested law can therefore necessarily encompass cross-border economic transactions.
61.      The contested provisions are therefore liable to affect the exercise of the fundamental freedoms.
62.      Consequently, Hungary’s argument that the contested law falls outside the scope of the fundamental freedoms because it seeks merely to protect its national sovereignty from non-economic activities must be rejected.
3.      The alleged premature nature of the proceedings in the absence of sufficient legal effects
63.      Furthermore, Hungary cannot claim that the contested law and, in particular, the procedures and acts of the Office cannot produce legally binding effects capable of undermining the fundamental freedoms protected by EU law or that those effects are merely negligible and uncertain. (25) After all, the specific purpose of the Office’s powers of investigation and the corresponding obligations to cooperate on the economic operators concerned is to monitor and regulate those operators’ conduct.
64.      In that regard, it should be observed that the investigative measures provided for in Paragraphs 7 and 8 of the contested law are legally binding vis-à-vis the organisations and individuals concerned, in particular those under investigation. This is sufficient to conclude that those measures can undermine the fundamental freedoms, (26) without the legislation at issue having to provide for penalties in the case of non-compliance with the obligations arising from that legislation. For those reasons, contrary to what Hungary argues, the powers and procedures of the Office are comparable not to those of the European Ombudsman under Article 228 TFEU, but rather to those of the European Anti-Fraud Office (OLAF) under Regulation (EU, Euratom) No 883/2013. (27) The European Ombudsman’s investigations cover only cases of maladministration in the institutions, bodies, offices or agencies of the European Union, (28) and do not provide for the adoption of legally binding investigative measures in respect of individuals.
65.      In the light of the foregoing considerations, nor can Hungary allege that the present proceedings are premature.
66.      Where a Member State’s potential failure to fulfil obligations has its origin in the adoption of legislation whose existence and application are not contested, the Commission discharges its burden of proof to establish the existence of such a failure to fulfil obligations by means of a legal analysis of the legislative provisions concerned. (29) It is that analysis by the Commission which forms the subject of my examination of the substance of the proceedings below.
67.      The pleas alleging a lack of competence or jurisdiction must therefore be rejected.
C.      Substance
68.      In its first plea in law, the Commission claims, supported by the interveners, that the requirements introduced by the contested provisions are contrary, inter alia, to the principles of non-discrimination and of proportionality (Articles 14, 16 and 19 of the ‘Services’ Directive) and to the country-of-origin principle (Article 3(2) of the Directive on electronic commerce).
1.      Infringement of the freedom to provide services guaranteed by Article 16 of the ‘Services’ Directive
(a)    Scope
69.      Under point 1 of Article 4 read in conjunction with Article 2(1) of the ‘Services’ Directive, that directive applies to any self-employed activity, normally provided for remuneration, by a provider established in a Member State.
70.      As there is no clear and precise definition in the contested law of the nature or of the scope of the activities that can be investigated (see points 58 and 59 of this Opinion), the Office could investigate activities of providers of advisory, interest representation, lobbying, public relations, media (including investigative media), advertising, educational or cultural services, which normally offer their services for remuneration.
71.      The mere fact that Paragraph 3 of the contested law covers certain non-remunerated activities, including those of not-for-profit organisations, which are not classified as the provision of services, does not mean that all the contested provisions are excluded from the scope of the ‘Services’ Directive. (30)
72.      Therefore, the activities referred to in Paragraph 3 of the contested law can fall within the scope of the first subparagraph of Article 16(1) read in conjunction with Article 2(1) and point 1 of Article 4 of the ‘Services’ Directive.
(b)    Requirements introduced by the contested law
73.      The third subparagraph of Article 16(1) of the ‘Services’ Directive prohibits the imposition of discriminatory and disproportionate requirements on service providers from other Member States.
74.      In accordance with point 7 of Article 4 of that directive, such requirements are defined as ‘any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States’.
75.      The duty of cooperation, imposed on the persons or organisations under investigation, pursuant to Paragraph 7 read in conjunction with Paragraphs 8, 11 and 12 of the contested law, must be regarded as a requirement within that meaning.
76.      Indeed, pursuant to Paragraph 7(3) of the contested law, the ‘organisation’ or the ‘person’ to which or to whom the Office makes a request for information is required to comply with that request within the period of time determined, which is why explicit reference is made to the ‘person required to cooperate’. Contrary to what Hungary contends, such an obligation to provide information to the Office does constitute a requirement, (31) even though non-compliance with it does not entail any immediate unfavourable legal consequence or penalty. (32)
77.      Under their duty of cooperation, the private legal or natural persons concerned are required, in accordance with Paragraph 8(1)(a) of the contested law, to submit for examination by the Office not only all data that may be connected with the subject matter of the investigation but also all the relevant documents, including those stored on electronic storage media, and to provide copies of them. Similarly, pursuant to Paragraph 8(1)(b) of that law, the Office is authorised to ‘request written or oral clarifications from any member of staff of the investigated organisation’. Furthermore, under Paragraph 8(1)(c) of that law, the Office may request such clarifications ‘from any organisation or person that may be connected to the subject matter of the investigation’, that is to say, third-party organisations and individuals, and ‘request copies of all data or documents, including documents stored on electronic storage media, that may be connected with the subject matter of the investigation’.
78.      Moreover, a failure to cooperate on the part of an organisation to which the Office addresses a request for information, pursuant to Paragraph 7(3) and Paragraph 8(1) of the contested law, may lead to the President of the Office referring the matter to the National Security Standing Committee, in accordance with Paragraph 12(a) of that law, so that the latter can conduct a hearing of ‘the person in charge of the investigated organisation’. The resulting obligation to appear before that committee must also be regarded as a requirement (‘condition or limit’) within the meaning of point 7 of Article 4 of the ‘Services’ Directive, in view of the powers enjoyed by the committee. (33)
79.      Furthermore, the mere possibility of referring a matter to the National Security Standing Committee may encourage the organisation concerned to comply with its obligation to cooperate with the Office. The same goes for the possible exercise by the Office of its power to take note of an unjustified refusal to cooperate or delay in cooperation and to make special mention of that refusal or delay in its annual report, in accordance with Paragraph 7(4) of that law, as an organisation may prefer to cooperate to avoid public criticism of its non-cooperation.
80.      Lastly, Paragraph 11 of the contested law authorises the Office to forward the facts and information gathered using its investigative powers to the competent authorities, if it considers that those facts or that information may give rise to the initiation, inter alia, of infringement or criminal proceedings. The possibility of being investigated by the Office on account of service activities which could be deemed to be jeopardising Hungarian sovereignty and of the evidence gathered being communicated to a competent authority authorised to open punitive proceedings is also a requirement (‘condition or limit’) within the meaning of point 7 of Article 4 of the ‘Services’ Directive. Such a requirement may deter a provider from providing its services in Hungary. The same consideration applies to the publication of the findings of the Office’s investigation, including in the annual report, pursuant to Paragraph 6(1) and (3) of the contested law, in which related criticisms made in respect of a service provider are set out.
81.      Consequently, the powers of the Office under Paragraph 7 read in conjunction with Paragraphs 8, 11 and 12 of the contested law and the corresponding obligations to cooperate imposed on the persons and organisations under investigation must be regarded as requirements within the meaning of the third subparagraph of Article 16(1) read in conjunction with point 7 of Article 4 of the ‘Services’ Directive. Those requirements are liable to impede or render less attractive the activities of a provider established in another Member State, where that provider lawfully provides similar services.
(c)    The requirements introduced by the contested law are not general administrative constraints
82.      In that regard, Hungary argues that the contested provisions do not specifically regulate service activities or the exercise of such activities, nor do they impose access-related requirements on such an activity;
they simply cover conduct which may undermine national sovereignty.
83.      Recital 9 of the ‘Services’ Directive states, inter alia, that that directive ‘applies only to requirements which affect the access to, or the exercise of, a service activity’. Thus, ‘it does not apply to requirements … which do not specifically regulate or specifically affect the service activity but have to be respected by providers in the course of carrying out their economic activity in the same way as by individuals acting in their private capacity’. That consideration confirms that that directive is not intended to eliminate general administrative constraints that apply to any individual, including those not carrying on an economic activity. In other words, such a generally applicable constraint cannot be regarded as a prohibited requirement within the meaning of point 7 of Article 4 of that directive. (34)
84.      However, the requirements introduced by the contested provisions do not, in my view, constitute such general administrative constraints affecting service providers in the same way as any other person acting in their private capacity. It is true that the contested law does not specify the majority of the activities concerned in order that those activities are covered generally, in particular according to their presumed harmful consequences for national sovereignty. However, all the activities referred to in Paragraph 3 thereof are more likely to entail such consequences where those activities are carried on by persons or organisations permanently active in the services sector, including information and communications services. Views expressed, even repeatedly or regularly, by an individual, for example, on social media are less likely to entail such consequences.
85.      This is the case with the ‘information manipulation and disinformation activities’ and the ‘activities aimed at influencing democratic discourse and State and social decision-making processes’ referred to in Paragraph 3(a)(ab) and (ac) of the contested law. In that regard, a provider of information and communications services generally has greater broadcasting capabilities and a larger public or audience than an individual. This would, inter alia, be the case as regards research conducted and publications made by providers of investigative media services which are intended to uncover and criticise cases of maladministration, non-transparency or corruption in political or government settings. In the light of the broad discretion enjoyed by the Office, such research and publications run a greater risk of being regarded as acts threatening or undermining sovereignty. (35)
86.      Furthermore, the activities falling within the scope of Paragraph 3(b) and (c) of the contested law (‘activities … with support from abroad’ that may ‘exert influence on the outcome of elections’ or are ‘aimed at influencing the will of voters’) are only activities of ‘organisations’ to the exclusion of individuals. Similarly, the ‘interest representation activities’ covered by Paragraph 3(a)(aa) of that law are, in practice, primarily activities of associations, if not of ‘professional interest representation organisations’, and not of an individual acting in a private capacity.
87.      Accordingly, even though it cannot be ruled out that the contested law may also affect individuals acting in a private capacity, the requirements introduced by the contested provisions, that is to say, the Office’s powers of investigation and disclosure, are intended primarily to target organisations, including economic entities active in the services sector. (36)
88.      Those requirements do not therefore constitute general administrative constraints permitted by the third subparagraph of Article 16(1) read in the light of recital 9 of the ‘Services’ Directive.
89.      It is therefore necessary to determine whether those requirements are non-discriminatory and proportionate within the meaning of points
(a) to (c) of the third subparagraph of Article 16(1) of that directive.
(d)    Non-discrimination, necessity and proportionality
(1)    The existence of direct or indirect discrimination (point (a) of the third subparagraph of Article 16(1) of the ‘Services’ Directive)
90.      Pursuant to point
(a) of the third subparagraph of Article 16(1) of the ‘Services’ Directive, Member States are not to make access to or exercise of a service activity in their territory subject to compliance with any requirements which are directly or indirectly discriminatory with regard to nationality.
91.      In the Commission’s view, the contested provisions are either overtly or indirectly discriminatory with regard to nationality. In response, Hungary argues that the Office can conduct an investigation only if the activities at issue threaten or undermine its sovereignty, a condition that applies regardless of the place of establishment of the service provider concerned.
92.      There is, in my view, no direct discrimination here.
93.      Paragraph 3(a) to (c) of the contested law refers
to activities ‘carried out in the interest of other States’ such as activities ‘with support from abroad’, including from other Member States. In so doing, that law does not distinguish directly between such activities according to the nationality of the person or the place of establishment of the organisation carrying on the activities. The activities of Hungarian nationals or of organisations established in Hungary are also covered, provided that they are operating ‘in the interest of other States’ or with financial support from abroad, including from a third country.
94.      It is therefore necessary to consider whether there is indirect discrimination.
95.      According to settled case-law of the Court, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect the nationals of other Member States (or, according to point
(a) of the third subparagraph of Article 16(1) of the ‘Services’ Directive, legal persons established in other Member States) more than the nationals (or legal persons established in the host Member State) and if there is a consequent risk that it will place the former at a particular disadvantage. (37)
96.      Although Paragraph 3 of the contested law is also addressed, by virtue of its open wording, to service providers established in Hungary or of Hungarian nationality carrying out, inter alia, interest representation, information or communications activities, that law does seek, in accordance with the primary objective set out in its preamble, to make public and to prevent attempts at foreign interference. (38) Thus, Paragraph 3(b) and (c) of that law expressly refers to organisations whose activities carried out ‘with support from abroad’ can influence elections. In addition, all activities carried out in the interest of ‘foreign bodies, organisations and natural persons’, within the meaning of Paragraph 3(a) of that law, can, inter alia, be activities of foreign service providers, including those established in other Member States. Similarly, and quite clearly, a service activity carried out from another Member State is more likely to be caught by the concept of ‘support from abroad’ within the meaning of Paragraph 3(b) and (c) of the contested law than the provision of services by a provider established in Hungary. The foreign service provider concerned therefore runs a greater risk than a Hungarian provider of being investigated by the Office.
97.      It follows that the contested provisions are indirectly discriminatory with respect to service providers established in other Member States.
(2)    Necessity and the existence of a sufficiently precise legal basis (point (b) of the third subparagraph of Article 16(1) of the ‘Services’ Directive)
98.      National rules laying down requirements within the meaning of the third subparagraph of Article 16(1) of the ‘Services’ Directive must be necessary and justified on grounds of public policy or public security relied on by the Member State. That presupposes that those rules are drafted in a sufficiently clear and precise manner. Only in those circumstances is it possible, first, to guarantee that the rules are implemented consistently and systematically, (39) if not to prevent their disproportionate and arbitrary application, (40) and, secondly, to determine their necessity to attain their objective.
99.      In the present case, Hungary contends, on grounds of public policy or public security, that it needs to protect domestic democratic processes from unlawful foreign interference with regard to all the activities referred to in Paragraph 3 of the contested law. The Commission argues, in essence, that the requirements introduced by that law are based on an impermissible presumption, made in principle and applied indiscriminately, that all those activities are liable to threaten those processes. (41)
100. A Member State has the sovereign right to take suitable measures to protect the integrity and the smooth conduct of the domestic elections and decision-making processes which form an integral part of its national identity within the meaning of Article 4(2) TEU. The same is true of measures intended to make transparent and to curb certain forms of support, in particular financial support, from abroad aimed at influencing those elections and processes. This is a legitimate, if not overriding, objective in the public interest capable of justifying a restriction on the free movement of services. (42)
101. As Hungary argues, the Court has thus held that the objective consisting in increasing the transparency of financial support granted to natural or legal persons may be regarded as an overriding reason in the public interest, since it is apt to improve the level of information enjoyed by citizens on that subject and to enable them to participate more closely in public debate. This is also due to the fact that some non-governmental organisations may, having regard to the aims which they pursue and the means at their disposal, have a significant influence on public life and public debate. (43)
102. However, the ‘activities’ carried out in the interest of other States and of foreign bodies, organisations and natural persons capable of harming or jeopardising sovereignty, and those who carry on such activities, that is to say, the ‘organisations’ and ‘persons’ who can be investigated by the Office, are included in broad terms in
Paragraph 3 of the contested law. The scope of that paragraph covers ‘interest representation activities’, ‘information manipulation and disinformation activities’, ‘activities aimed at influencing democratic discourse and State and social decision-making processes’, ‘activities intended to influence decision-making by persons who exercise public authority responsibilities’, ‘activities carried out with support from abroad [which] may exert influence on the outcome of elections’ and ‘activities aimed at influencing the will of voters using support from abroad’ all ‘carried out in the interest of other States and of foreign bodies, organisations and natural persons’.
103. In addition, Paragraph 3 of the contested law places EU organisations and EU nationals who take advantage of the freedom to provide services on an equal footing with organisations and persons from third countries. For instance, both the preamble to that law (44) and various reports and press releases from the Office, some of which were included in the documents before the Court or mentioned in the parties’ pleadings or at the hearing, refer to interference by and allegedly unlawful financial support from foreign actors, regardless of their origin or their place of establishment. This includes the activities of international organisations, such as Transparency International, (45) and US organisations via a media foundation and an investigative portal established in the European Union. (46) Similarly, reference is made to the conduct of Member States of the European Union or of the European Economic Area (EEA), such as the Kingdom of Norway, or of the European Union itself, in particular in the context of co-financed support from EU structural funds for non-governmental organisations in Hungary. (47) Accordingly, the contested law, as applied to date, has no regard to the need to comply with the freedom to provide services, if not EU law generally.
104. Furthermore, the concept of ‘adversely affecting’ or ‘jeopardising’ Hungary’s sovereignty, as provided for in Paragraph 3(a) in fine of the contested law, is particularly vague and confers broad discretion on the Office. That discretion is bolstered by the decision of the Alkotmánybíróság (Constitutional Court, Hungary), relied on by Hungary, which confirmed the constitutionality of that law. In that decision, not only did that court not rule on the scope or the purpose of the activities referred to in Paragraph 3 of the contested law, but it also found that the concept of national sovereignty is both politically and legally complex. (48) Finally, that broad discretion notwithstanding, the Office’s implementation of that law is not subject to administrative or judicial review. (49)
105. It follows that the scope ratione materiae and scope ratione personae of the contested law are expansive, whilst also conferring broad discretion on the Office, which involves a significant risk of arbitrariness as regards its application for the purposes of protecting national sovereignty.
106. Accordingly, given their very great scope of application, it cannot be ensured that the provisions of the contested law can be implemented in a consistent and systematic manner which would be compatible with EU law. Their discretionary implementation in fact carries an increased risk of inappropriate or disproportionate restrictions being laid down on the exercise of the freedom to provide services guaranteed by Article 16 of the ‘Services’ Directive.
(3)    Proportionality (point (c) of the third subparagraph of Article 16(1) of the ‘Services’ Directive)
107. It is necessary to examine whether the requirements introduced by the contested law satisfy the criterion of proportionality having regard to the objective in the public interest pursued (point
(c) of the third subparagraph of Article 16(1) of the ‘Services’ Directive).
108. In accordance with the principle of proportionality, a Member State must ensure that the measures adopted by it are suitable for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary to achieve those objectives, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous, and that the disadvantages caused must not be disproportionate to the aims pursued. (50)
109. It is necessary to determine whether the requirements laid down by the contested law, that is to say, inter alia, those governing the Office’s investigative powers, are (i) suitable, (ii) necessary and (iii) appropriate means to achieve the legitimate objective pursued of protecting domestic democratic processes from unlawful foreign interference.
(i)    Suitability for achieving the legitimate objective pursued
110. Legislation can be regarded as suitable to guarantee the achievement of the legitimate objective pursued only if it satisfies the concern to attain that objective consistently and systematically (see point 98 of this Opinion). This is only the case if
there is a genuine risk of the conduct subject to that legislation undermining that objective. (51)
111. It is therefore necessary to examine, for each of the activities within the meaning of Paragraph 3 of the contested law which can be investigated by the Office, whether and to what extent they are liable to undermine the objective of protecting domestic democratic processes. To that end, the various activities that may be investigated or be made subject to restrictive measures by the Office must be clearly distinguished. However, there is no need to examine organisations’ activities ‘with support from abroad’, within the meaning of Paragraph 3(b) and (c) of the contested law, in so far as they are intended to finance directly or indirectly Hungarian political parties or their candidates for election (see points 22 and 23 of this Opinion). (52) The Commission does not contest the legality in the light of EU law of requirements intended to prevent, detect, make transparent, prohibit or impose criminal penalties on such financing, including through private organisations or associations, as mentioned in the fourth paragraph of the preamble to the contested law. (53) This takes into account the fact that Member States are, in principle, free to protect their elections and the will of voters from inappropriate foreign interference and to limit, if not prohibit, the financing of national political parties from abroad. (54) In so far as those requirements are intended to pursue those objectives in the general interest, they do not form part of the subject matter of the present proceedings.
112. However, it is necessary to assess the suitability of the requirements introduced by the contested provisions governing the Office’s powers in relation to the other activities referred to in Paragraph 3 of the contested law which fall outside the context set out above.
113. First, the exercise of the Office’s powers appears, in principle, suitable for protecting the integrity and the smooth conduct of domestic democratic discourse and decision-making processes in so far as those powers cover ‘interest representation activities’ and ‘activities aimed at influencing’
that discourse and those processes that are carried out in the interest of other States and of foreign bodies, organisations and natural persons within the meaning of Paragraph 3(a)(aa) and (ac) of the contested law. Indeed, in contrast to those other States and foreign bodies, organisations and natural persons, it is essentially for internal actors in the State concerned to determine the democratic and decision-making processes therein.
114. This is particularly true as regards the implementation of the Office’s investigative powers with respect to the ‘activities intended to influence decision-making by persons who exercise public authority responsibilities’ within the meaning of that provision, which equate to the attempts to corrupt
public officials. Since the fight against corruption is an overriding objective in the public interest, authorising the Office to investigate attempts to influence decision-making by persons who exercise public authority responsibilities is a suitable means to that end.
115. Secondly, since the activities of organisations ‘with support from abroad’ within the meaning of Paragraph 3(b) and (c) of the contested law do not fall outside the subject matter of the present proceedings (see point 111 of this Opinion on the financing of political parties), they also cover cross-border activities carried out for a fee by operators active in the communications and media services sectors. However, the purpose of such service activities may be to disseminate information in the general interest and views of a political nature, including outside the electoral process in the strict sense. Such support, even of a non-financial nature, (55) or financing of those services could even be an important component of contributing to public discourse and promoting or defending the legitimate interests of minority groups, (56) as well as the pursuit by non-governmental organisations of objectives in the public interest, such as the protection of the environment (57) or efforts to tackle corruption. (58) Where such activities are carried out for a fee simply for the purposes of providing information or communications in the public interest or to publicly express a political opinion, they cannot present a threat to democracy in Hungary. On the contrary, given that, in principle, they contribute legitimately to democratic discourse and processes, they should be protected with regard to the stated aim.
In fact, it cannot be ruled out that such legitimate contributions to democratic discourse and processes could be discredited for the sole reason that they are carried out ‘in the interest of
other States and of foreign bodies, organisations or natural persons’. (59) Accordingly,
the exercise of the Office’s investigative powers in relation to them does not appear suitable for protecting the domestic democratic discourse or processes, and may even have a counterproductive impact in that regard.
116. Thirdly, the exercise of the Office’s investigative powers with regard to the ‘information manipulation and disinformation activities’ which are ‘carried out in the interest of other States and of foreign bodies, organisations or natural persons’ and which are referred to in Paragraph 3(a)(ab) of the contested law does, however, generally speaking appear suitable for protecting the domestic democratic processes from unlawful foreign interference. In that regard, it is important to note that both the manipulation of factual information and the spreading or amplification of disinformation constitute generally reprehensible activities in the light of the objective of safeguarding public policy in pluralist and democratic societies. Such activities serve to distort public debate and public opinion and do not deserve protection, even if they take the form of a service activity. (60) Member States may thus, in principle, legitimately adopt appropriate measures to protect their societies from manipulative interference of that kind. (61) In the same vein, the European Union itself has adopted measures intended to monitor and punish such activities (62) generally without linking them to foreign States or foreign actors.
117. It is therefore necessary to examine whether the exercise of the Office’s powers of investigation with respect to (i) the ‘interest representation activities’ and the ‘activities aimed at influencing democratic discourse and State and social decision-making processes’ within the meaning of Paragraph 3(a)(aa) and (ac) of the contested law and (ii) ‘information manipulation and disinformation activities’ carried out in the interest of other States and of foreign bodies, organisations and natural persons within the meaning of Paragraph 3(a)(ab) of that law, is necessary
to achieve the legitimate objective pursued.
(ii) Necessity
118. A measure is necessary where the legitimate objective pursued cannot be achieved by means of a measure that is equally suitable but less onerous. It is therefore necessary to verify whether there are not less onerous means of protecting the domestic democratic processes from unlawful foreign interference than to subject the activities set out in point 117 of this Opinion to the Office’s powers of investigation.
119. It is true that all those concepts are non-specific in nature, with the result that their scope is potentially wide. However, as regards ‘interest representation activities’ and ‘activities aimed at influencing democratic discourse and State and social decision-making processes’ in the interest of other States and of foreign (legal or natural) persons, it hardly seems possible to further specify them such as to allow effective State control to protect domestic democratic processes from illegitimate interference, in particular, from other States. That is even more the case for the concept of ‘information manipulation and disinformation activities’ which correspond to the measures adopted at EU level to protect democratic and pluralist societies from such activities. (63) Given the difficulty of devising a more precise and less onerous definition and the need to be able to curb all damaging, manipulative activities of that kind effectively, it does not therefore appear inappropriate to confer on an independent body, such as the Office, powers to investigate such activities. On the contrary, by reason of the additional condition that such activities be carried out ‘in the interest of other States and of foreign bodies, organisations and natural persons’, the concept of ‘information manipulation and disinformation activities’ appears more clearly delineated than that provided for in EU law.
120. It is therefore necessary to verify the proportionality stricto sensu of the Office’s exercise of its investigative powers in that regard.
(iii) Proportionality
121. In accordance with the test of proportionality applied stricto sensu, measures that are suitable and necessary to achieve the legitimate aims pursued must not cause disadvantages that are disproportionate to the declared aims. Here, it is therefore necessary to make sure that the exercise of the Office’s powers of investigation in respect of (i) ‘interest representation activities’ and ‘activities aimed at influencing democratic discourse and State and social decision-making processes’, within the meaning of Paragraph 3(a)(aa) and (ac) of the contested law, and (ii) ‘information manipulation and disinformation activities’, within the meaning of Paragraph 3(a)(ab) of that law, does not disproportionately or excessively undermine the freedom to provide services protected by Article 16 of the ‘Services’ Directive.
122. The non-specific nature of those concepts of ‘activities’ which are ‘carried out in the interest of other States and of foreign bodies, organisations and natural persons’, combined with the broad discretion conferred on the Office in that regard (see point 104 of this Opinion), does however entail a substantial risk of inconsistent and disproportionate interpretation of Paragraph 3(a) of the contested law with regard to the objective of protecting domestic democratic processes.
123. However, as regards the protection of the integrity and the smooth conduct of the domestic discourse and decision-making processes, including by ‘persons who exercise public authority’, this risk is reduced. The relevant interference activities are precisely those promoting interest representation – in principle, illegitimate in this context – of other States as well as of foreign bodies, organisations and natural persons against which the State must legitimately be able to protect its domestic (decision-making) democratic processes. The same is true for activities ‘aimed at influencing democratic discourse and State and social decision-making processes’ in favour of foreign actors. Thus, the review undertaken by an independent body aimed at identifying clearly interests likely to harm those processes cannot be considered to be disproportionate or excessive.
124. By contrast, regarding the concept of ‘information manipulation and disinformation activities’, within the meaning of Paragraph 3(a)(ab) of the contested law, that substantial risk of incoherent and disproportionate or even erroneous interpretation appears to be real and to be confirmed by the Office’s practice, as put forward by the Commission. The Office alleges that Transparency International engaged in ‘disinformation’ activities by criticising the lack of transparency and the corruption in government settings in a number of countries, including Hungary. (64) Activities with the aim of increasing transparency and stemming corruption are activities capable of contributing to the protection of domestic democratic processes and not the reverse. It therefore appears contradictory to classify such activities as ‘disinformation’ that jeopardises sovereignty.
125. Furthermore, it should be recalled that the application of Paragraph 3
of the contested law is not subject to an administrative or judicial review. (65) Accordingly, there is no means of appeal or of independent legal review which could prevent or remedy such excessive interpretations of the concept of ‘disinformation’ or a disproportionate implementation of the Office’s powers of investigation in that regard. It follows that any measure taken by the Office within that context is not subject to a proportionality review to ensure that the Office is confined to taking suitable, and the least intrusive, measures to achieve the alleged objectives, whilst taking into account the freedom to provide services protected by Article 16 of the ‘Services’ Directive.
126. In those circumstances, the requirements introduced by the contested law in relation to the ‘information manipulation and disinformation activities’ referred to in Paragraph 3(a)(ab) of the contested law cannot be regarded as being proportionate to achieving the objective of protecting domestic democratic processes.
(iv) Interim conclusion
127. Therefore, regarding the activities referred to in Paragraph 3(a)(ab) and (b) and (c) of the contested law, in so far as they do not fall outside the scope of the present proceedings because they concern elections (see point 111 of this Opinion regarding direct and indirect foreign financing of political parties or electoral candidates), the requirements laid down by the contested law are either unnecessary or disproportionate to achieving the alleged objectives in the general interest within the meaning of points (b) and (c) of the third subparagraph of Article 16(1) of the ‘Services’ Directive. However, this is not the case for activities aimed at ‘interest representation’ and at ‘influencing democratic discourse and State and social decision-making processes’, including the activities of ‘persons who exercise public authority responsibilities’ (see points 113 and 123 of this Opinion).
128. It follows that the plea in law alleging infringement of Article 16 of the ‘Services’ Directive must be upheld in this respect.
2.      Infringement of the freedom to receive services guaranteed by Article 19 of the ‘Services’ Directive
129. The Commission argues that the contested provisions are also incompatible with the freedom to receive services under Article 19 of the ‘Services’ Directive. Under that provision, Member States may not impose on a recipient requirements which restrict the use of a service supplied by a provider established in another Member State.
130. I recall that the contested provisions do impose ‘requirements’ within the meaning of point 7 of Article 4 of the ‘Services’ Directive (see points 73 to 87 of this Opinion). Such requirements are, in principle, prohibited by Article 19 of that directive, since the list of requirements provided for in that article is not exhaustive (‘in particular’).
131. The Office can open and conduct investigations into recipients of services provided in the context of activities referred to in Paragraph 3 of the contested law. This may also concern beneficiaries of ‘support from abroad’, in so far as such support is provided for a fee, for example the grant of a loan on preferential terms. Those recipients or beneficiaries are obliged to cooperate with the Office pursuant to Paragraph 7(1) to (3) read in conjunction with Paragraph 8(1) of that law. They might therefore be dissuaded from using such services in order to minimise the risk of being the subject of such an investigation or a publication within the meaning of Paragraph 7(4) read in conjunction with Paragraph 6(3) and (8) of the contested law.
132. For the reasons set out in point 98 et seq. of this Opinion, those requirements are only partially
justified by an overriding public interest.
133. The contested provisions therefore also infringe the freedom to receive services within the meaning of Article 19 of the ‘Services’ Directive in that respect.
134. It follows from the foregoing considerations that the pleas in law alleging infringement of Articles 16 and 19 of the ‘Services’ Directive are well founded and must be upheld.
3.      Infringement of the freedom of establishment guaranteed by Article 14 of the ‘Services’ Directive
135. Point 1 of Article 14 of the ‘Services’ Directive, which gives effect to the freedom of establishment enshrined in Article 49 TFEU, (66) prohibits Member States from making access to, or the exercise of, an activity in their territory subject to compliance with a discriminatory requirement based directly or indirectly on nationality or, in the case of companies, on the location of the registered office. Point 1(a) and (b) of Article 14 merely sets out examples in that regard (‘in particular’). (67)
136. As set out in points 58 and 59 et seq. of this Opinion, Paragraph 3 of the contested law covers a multitude of activities, including economic activities. Thus, the establishment of a subsidiary in Hungary by a provider whose registered office is in another Member State could be regarded as an activity carried out in the interest of a foreign body, organisation or natural person or with foreign support.
137. Since they provide, inter alia, for investigate powers of the Office and corresponding obligations to cooperate on the part of the organisations and persons concerned, the contested provisions must be regarded as ‘requirements’ within the meaning of point 7 of Article 4 of the ‘Services’ Directive. (68)
138. Those requirements are indirectly discriminatory based on the nationality or the registered office of the provider (see points 95 to 97 of this Opinion). For instance, foreign providers looking to set up in Hungary are indirectly discriminated against, since setting up an establishment there and the activities associated with so doing are regularly liable to satisfy the concept of ‘support from abroad’ or that of an activity carried out in the interest of a foreign body, organisation or natural person. Accordingly, the requirements laid down in the contested provisions are liable to affect foreign providers more than Hungarian providers.
139. In accordance with the considerations set out in points 107 to 127 of this Opinion, in the present case, such indirect discrimination cannot be justified where it is neither necessary nor appropriate for protecting democracy. (69)
140. The plea in law alleging infringement of Article 14 of the ‘Services’ Directive is therefore well founded and must be upheld.
4.      Infringement of the free movement of information society services guaranteed by Article 3 of the Directive on electronic commerce
141. In the Commission’s view, the contested provisions infringe Article 3 of the Directive on electronic commerce. Under paragraph 2 of that article, Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
142. Hungary calls into question the applicability of the Directive on electronic commerce on the ground that the contested law does not impose any ‘requirement’ as regards services provided electronically. It argues, in any event, that any restriction is not based on reasons falling within the ‘coordinated field’ within the meaning of Article 2(h) of the Directive on electronic commerce, since the objective of that law is confined to protecting national sovereignty from the activities that threaten it.
143. Pursuant to Article 2(a) of the Directive on electronic commerce, read in conjunction with Article 1(1)(b) of Directive (EU) 2015/1535, (70) ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.
144. As I have noted in points 58 and 59 of this Opinion, Paragraph 3 of the contested law is broadly framed and extends the scope ratione materiae and the scope ratione personae of that law to a large number of ‘activities’, including service activities, which can be carried on by a variety of organisations or persons. It can therefore necessarily include providers of information services supplied for remuneration, such as media, communications or advertising services, including those of a political nature, (71) which are often provided at a distance or by electronic means and at the individual request of their recipient. (72)
145. This is confirmed by Paragraph 3(a)(ab) of the contested law since the ‘information manipulation and disinformation activities’ referred to therein may also be activities of such a service provider. (73) Notwithstanding the fact that there are no specific rules in that law on information society services, such activities may therefore fall within the scope of the Directive on electronic commerce.
146. In accordance with Article 3(1) of the Directive on electronic commerce, which is based on the country-of-origin principle, the host Member State must simply monitor that the information society services provided by a service provider on its territory comply with the national provisions applicable in the Member State of origin which fall within the coordinated field.
147. Pursuant to Article 2(h) of that directive, the coordinated field encompasses ‘requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them’. (74) Thus, the national legislation concerned does not have to be aimed specifically at regulating information society services, but the requirements at issue may be of a general nature. (75)
148. It follows that the conditions and the obligations to cooperate covered by Paragraphs 6 to 8, 11 and 12 of the contested law must be regarded as ‘requirements concerning the behaviour of the service provider, … the quality or content of the service’, within the meaning of the second indent of Article 2(h)(i) of the Directive on electronic commerce (see also points 73 to 81 of this Opinion). In particular, the legal obligation on a provider of online services to provide a national authority with certain information about its activity means that that provider must satisfy conditions which are not required in its Member State of establishment. (76) The same goes for the provisions governing the consequences of a failure by service providers to cooperate with the Office as part of an investigation. This includes the publication of that failure in the annual report in accordance with Paragraph 6(3) read in conjunction with Paragraph 7(4) of the contested law, as well as the potential referral of the matter by the President of the Office to the National Security Standing Committee of the National Assembly pursuant to Paragraph 12(a) of that law. (77)
149. It must therefore be stated that the providers of such services, which are established in another Member State and wish to provide those services in Hungary, are required to comply with the obligations under the contested law as requirements falling within the coordinated field. (78) However, Article 3(2) of the Directive on electronic commerce precludes the provider of such a service from being subject, in the host Member State, to stricter requirements than those provided for in the substantive law in force in the Member State of origin or of establishment of that provider. (79) As set out in point 63 of this Opinion, Hungary cannot argue in that regard that the influence exerted by the contested law on the behaviour of economic operators is too negligible and uncertain.
150. Lastly, as the Commission claims, in the present case, there is no need to examine the potentially justified nature of the restrictions identified. It is true that the first and third indents of Article 3(4)(a)(i) of the Directive on electronic commerce does allow Member States to take measures which restrict the freedom to provide information society services within the meaning of Article 3(2) of that directive, inter alia, for reasons of public policy and of public security. However, in that regard, Hungary should have first followed the procedure referred to in Article 3(4)(b) of that directive by
making a request to the Member State of origin to take such measures and, subsequently, in the event that no such measures were taken or inadequate measures were taken, by notifying the Commission and that Member State of its intention to take such measures, (80) which it quite clearly did not do.
151. Therefore, the contested provisions must be declared contrary to Article 3(2) of the Directive on electronic commerce, without it being necessary, in principle, to examine their possible justification. Furthermore, that justification would be partially ineffective, as demonstrated by the examination of the justification for the contested measures on the basis of the ‘Services’ Directive in point 107 et seq. of this Opinion.
152. The plea in law alleging infringement of Article 3 of the Directive on electronic commerce must therefore be upheld.
5.      Infringement of the freedom to provide services and of the freedom of establishment guaranteed by Articles 49 and 56 TFEU
153. The Commission also relies on an infringement of the more general provisions of Articles 49 and 56 TFEU.
154. In response, Hungary contends, in essence, that the contested law cannot be examined simultaneously in the light of several provisions of primary law and of secondary law concerning the fundamental freedoms.
155. It follows from established case-law that, where national legislation falls in its entirety within the scope of secondary law which has been the subject of exhaustive harmonisation at EU level, that legislation can no longer be reviewed in the light of primary law. (81)
156. In view of the broad scope of Paragraph 3 of the contested law on account of the non-specific nature of the concepts of ‘activities’ laid down therein (see points 58 and 59 of this Opinion), those activities can, indeed, encompass service activities falling outside the scope of the Directive on electronic commerce and the ‘Services’ Directive. Accordingly, to that extent, the relevant primary law remains, in principle, applicable.
157. However, the Commission has not stated the reasons why, in addition to the alleged infringements of the Directive on electronic commerce (Article 3) and of the ‘Services’ Directive (Articles 14, 16 and 19), the legality of the contested provisions should be assessed simultaneously in the light of Articles 49 and 56 TFEU, since those directives provide for exhaustive harmonisation at EU level of the service activities falling within their scope.
158. Furthermore, in the context of these proceedings, the Commission no longer alleges that Hungary has infringed Article 3 of the Audiovisual Media Services Directive, (82) an infringement upon which it had still relied in support of the reasoned opinion (see points 27 and 33 of this Opinion). In those circumstances, it can no longer claim that Hungary has restricted the freedom to provide audiovisual media services solely in the light of Article 49 or Article 56 TFEU.
159. Therefore, the contested law does not have to be assessed in the light of Article 49 or Article 56 TFEU.
160. The pleas in law alleging simultaneous infringement of those articles must therefore be rejected as unfounded.
161. This does not affect the free movement of capital guaranteed by Article 63 TFEU, which is not covered by the Directive on electronic commerce or the ‘Services’ Directive. (83) That freedom is therefore not secondary, within the meaning of the case-law relied on by Hungary, (84) in relation to the freedom to provide services or the freedom of establishment which are specified by the provisions of those directives.
6.      Infringement of the free movement of capital guaranteed by Article 63 TFEU
162. In the Commission’s view, the restrictions based on the contested provisions infringe the free movement of capital enshrined in Article 63 TFEU.
(a)    The existence of a restriction
163. Article 63(1) TFEU prohibits all restrictions on the movement of capital between Member States and between Member States and third countries.
164. The concept of a ‘restriction’ on the free movement of capital provided for in Article 63 TFEU covers, in general terms, any restriction on movements of capital both between Member States and between Member States and third countries. In particular, that concept includes State measures which are discriminatory in nature in that they establish, directly or indirectly, a difference in treatment between domestic and cross-border movements of capital which does not correspond to an objective difference in circumstances, and which are therefore liable to deter natural or legal persons from other Member States or third countries from carrying out cross-border movements of capital. (85)
165. Pursuant to Paragraph 3(b) and (c) of the contested law, the Office is authorised to investigate organisations which carry out activities ‘with support from abroad’, which ‘may exert influence on the outcome of elections’, or ‘activities aimed at influencing the will of voters using support from abroad or which support such activities’. Unlike the concept of ‘foreign support’ used in the Criminal Code, (86) the contested law does not clarify what is meant by ‘support’. That concept may therefore inter alia cover financial support or an investment from another Member State or a third State for a multitude of organisations or persons. (87)
166. However, the Office’s powers of investigation and the corresponding obligations to cooperate imposed on the persons or organisations concerned are generally liable to frustrate or render less attractive cross-border financial support or investments. The same is true for the Office’s power to make public information relating to those organisations or persons and to that financial support, which is capable of deterring the organisations or persons from providing such support. (88)
167. Furthermore, the contested provisions, taken in their entirety, reserve different treatment for organisations established in Hungary which receive financial support from other Member States or third countries as compared with those which receive financial support from a Hungarian source. This is due to the fact that, in accordance with Paragraph 3(b) and (c) of the contested law, only the suspicion of the existence of investments of foreign origin (‘support from abroad’) can lead to the Office opening an investigation and adopting measures. (89) Accordingly, persons who provide those organisations with such support from another Member State or a third country are exposed to a higher risk of proceedings being brought and are treated differently from those whose support comes from a place of residence or a registered office located in Hungary. Those differences in treatment according to the national or ‘foreign’ origin of the financial support, and therefore the location of the place of residence or the registered office of the natural or legal persons providing that support, constitute indirect discrimination on the basis of nationality.
(b)    Justification
168. Article 65(1)(b) TFEU allows Member States to restrict the free movement of capital on grounds of public policy and public security. Such a restriction may be allowed where it is necessary and proportionate to attain, in a consistent and systematic manner, an overriding objective in the public interest for the purposes of Article 65 TFEU. (90)
169. In Hungary’s view, the contested provisions are consistent with the objectives of EU law, in particular those of the rules intended to combat money laundering and the financing of terrorism, which constitutes, in principle, a legitimate public policy objective. (91) However, Hungary has not demonstrated the link between the activities covered by Paragraph 3(b) and (c) of the contested law (‘activities carried out with support from abroad’ which ‘may exert influence on the outcome of elections’ and ‘activities aimed at influencing the will of voters using support from abroad’) and money laundering or the financing of terrorism. It has simply referred in vague terms to the related EU legislation.
170. Furthermore, it should be observed that Hungary does not rely, in that context, as a public policy objective, on the protection of the electoral process as such by prohibiting direct or indirect financial support for candidates in elections or for political parties. Such protection is inter alia guaranteed by the criminal provisions mentioned in points 22 and 23 of this Opinion. (92)
171. Nor does the Commission contest the requirements of financial transparency or the criminal provisions introduced or amended by the contested law, which refer, specifically, to the direct or indirect financing of political parties or their candidates for election. Measures restricting the free movement of capital adopted by the Office or by other competent authorities on the basis of those requirements and provisions in respect of organisations within the meaning of Paragraph 3(b) and (c) of that law do not therefore form the subject matter of the present proceedings. In any event, such measures may be justified by the overriding objective in the public interest of protecting domestic democratic processes. (93) The same goes for the relevant provisions of the Law on the operation and the management of political parties, which the Commission does not contest and which prohibit, as a matter of criminal law, foreign financial support aimed at influencing the will of voters by a ‘designating body’. (94)
172. Lastly, in so far as Hungary relies on the increase in the financial transparency of non-governmental organisations, (95) for the reasons set out in point 115 of this Opinion, the requirements introduced by the contested law are not suitable for achieving that objective.
173. Therefore, in so far as they entail restrictions on the activities carried out ‘with support from abroad’ referred to in Paragraph 3(b) and (c) of the contested law, the contested provisions infringe the free movement of capital enshrined in Article 63 TFEU.
174. The plea in law alleging infringement of Article 63 TFEU is therefore well founded and must be upheld.
7.      Infringement of the provisions of the Charter
(a)    Complaints and applicability of the provisions of the Charter
175. The Commission claims that the contested law infringes the freedom of expression and information (Article 11 of the Charter), the freedom of assembly and of association (Article 12 of the Charter), the right to respect for private and family life (Article 7 of the Charter), the obligation of professional secrecy between lawyer and client (Article 7 read in conjunction with Article 47 of the Charter) and the right to avoid self-incrimination (Article 48 of the Charter).
176. Pursuant to Article 51(1) of the Charter, those provisions and fundamental rights are addressed to the Member States when they are implementing Union law.
177. As is apparent from the considerations set out in point 68 et seq. of this Opinion, the contested provisions and their implementation entail restrictions on the exercise of a number of fundamental freedoms, as guaranteed by primary and secondary EU law.
178. Accordingly, as regards the adoption and the implementation of the contested law, Hungary is bound by the provisions of the Charter.
179. I will examine separately the complaints alleging breach of the rights guaranteed by Article 7 (Respect for private and family life), Article 11 (Freedom of expression and information) and Article 12 (Freedom of assembly and of association) of the Charter in order to determine, first, whether there is interference with those rights (Subsections
(b) to (d)). Secondly, I will make a joint assessment as to whether such interference is justified by overriding reasons in the public interest and proportionate in that regard (Subsection (e)). Thirdly, I will consider whether there is interference with the rights guaranteed by Article 7 read in conjunction with Article 47 (Right of legal privilege between lawyer and client) and by Article 48 (Presumption of innocence and rights of defence encompassing the right to avoid self-incrimination) of the Charter and any related justifications (Subsections
(g) and (h)).
(b)    Interference with the freedom of expression and information guaranteed by Article 11 of the Charter
180. It is necessary to examine whether the contested provisions entail interference with the freedom of expression and information, guaranteed by Article 11(1) of the Charter, inter alia, in that they confer on the Office powers of investigation and publication and impose corresponding duties to cooperate on the organisations and persons concerned.
181. The Commission, supported by the interveners, consider that that is the case. They argue that Paragraph 3 of the contested law primarily covers activities which, by their very nature, are closely connected with the communication of information and the expression of opinions, in particular in the context of the exchange of ideas on matters of public interest, democratic discourse, political life and electoral processes. By authorising the Office to make such activities subject to extensive surveillance and to disclose the potentially accusatory findings of such surveillance, the contested provisions seriously undermine the freedom of expression, inter alia, of press or media organisations and of non-governmental organisations.
182. In response, Hungary contends that the measures taken by the Office on the basis of the contested provisions are neutral because they are concerned not with the content of a communication or an opinion, but rather simply with the harm caused by them to national sovereignty.
183. The freedom of expression and information, guaranteed by Article 11(1) of the Charter, includes the freedom to receive and impart information and ideas without interference by a public authority. In addition, where journalists and/or publishers and press organisations are concerned on account of the publication of a press article, freedom of expression and information is specifically protected by Article 11(2) of the Charter, which provides that the freedom and pluralism of the media are to be respected. (96)
184. Pursuant to Article 52(3) of the Charter, the scope of those rights is to be interpreted taking into account the case-law of the European Court of Human Rights (‘the ECtHR’) on Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), which determines the minimum threshold of protection in that regard, (97) without however precluding EU law from affording more extensive protection. (98)
185. Although the nature and the scope of some of the interference ‘activities’ in the interest of other States or of (legal or natural) foreign persons are not specified sufficiently
in Paragraph 3 of the contested law, (99) the main objective of that law consists in identifying and combating threats to or the undermining of national sovereignty arising from those activities. The preservation of that objective necessarily means that the Office must investigate the subject, scope and content of opinions or communications, including information, which form the subject matter of those activities, such as ‘activities aimed at influencing democratic discourse and State and social decision-making processes’ within the meaning of Paragraph 3(a)(ac) of that law. A provisional analysis in that regard is in fact necessary even before such an investigation is opened.
186. The distinction made by Hungary between the content of the expression of an opinion or a communication capable of coming within the scope of Paragraph 3 of the contested law, on the one hand, and the threat to or undermining of national sovereignty arising therefrom, on the other hand, is therefore impracticable, unless the view is taken that any expression of opinions or of communication in the interest of a foreign organisation or individual is in itself a potential threat to that sovereignty justifying intervention by the Office. Such an assessment confirms, a fortiori, the discriminatory nature of the provisions of Paragraph 3 of that law. Therefore, Hungary’s argument that the media and journalists, who enjoy broad protection under the freedom of expression, (100) are not in principle concerned by the contested law because that law covers only unlawful foreign influence on elections and the will of the electorate must also be rejected.
187. In addition, the wording of Paragraph 3(a) of the contested law allows the Office to investigate any possible activity of interference in the interest of other States or of (legal or natural) foreign persons that may adversely affect or jeopardise sovereignty relating to public discourse, regardless of its subject matter, its scope, its content or its origin. (101) That vague nature of the contested provisions makes clear on its own that those provisions may entail or give rise to interference with the freedom of expression and information.
188. Such interference does not presuppose that a State penalises the expression of a specific expression because of its content. That freedom also provides protection against State measures which have a chilling effect on the expression of opinions in general and carry the risk of self-censorship. (102) Thus, in order to establish such a chilling effect, it is sufficient that the expression of an opinion may be the subject of a criminal investigation. (103)
189. Here, the risk of such criminal proceedings, whether justified or not, increases following an investigation by the Office, given the latter’s authorisation or rather obligation to forward its findings to the competent authorities, including the criminal authorities, pursuant to Paragraph 11 of the contested law. (104) Similarly, such a chilling effect or risk of self-censorship stems from the threat of the Office potentially opening an investigation and its authorisation to make public, at the end of that investigation, the findings of the investigation and of – potentially accusatory or stigmatising – reports on the internet, in accordance with Paragraph 6(1) and (3) of that law. Accordingly, that chilling effect and that risk of self-censorship arise from the Office’s powers of investigation and from the obligations to cooperate imposed on the organisations or persons operating in the media, press and communications sectors. Those organisations or persons may be investigated because they carry out one of the ‘activities’ referred to in Paragraph 3 of the contested law. (105)
190. Moreover, the protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, those sources might be deterred from assisting the press in informing the public on matters of public interest. (106) However, by complying with its duty to cooperate and providing any information requested by the Office, a press or media organisation or representative risks revealing the identity of its or his or her sources of information. Accordingly, the apparent participation of journalists in the identification of anonymous sources always has a chilling effect. (107) If such potential sources of information lose confidence that their identity is protected, they will stop contacting those journalists to provide them with sensitive information. This could also result in a journalist limiting or ceasing his or her investigative activities or the receipt of foreign support to that end, or in engaging in self-censorship to avoid the Office opening an investigation.
191. Pursuant to Paragraph 6
of the contested law, the Office may make public its assessment at the end of an investigation and in its annual report, even if it is unfavourable to the organisation or the person concerned, which it has already done, as is apparent from the reports and press releases published. (108) Public statements of that kind, such as public warnings issued by a State authority, can indeed have a chilling effect on the free expression of opinions. (109) This is particularly the case where that public statement is accusatory or stigmatising. (110)
192. The contested provisions therefore entail interference with the freedom of expression and information guaranteed by Article 11(1) of the Charter.
(c)    Interference with the freedom of association guaranteed by Article 12 of the Charter
193. Pursuant to Article 12(1) of the Charter, everyone has the right to freedom of association at all levels, in particular in political, trade union and civic matters. That right corresponds to the right guaranteed in Article 11(1) ECHR and must therefore be given the same meaning and the same scope as the latter, as a minimum threshold of protection, in accordance with Article 52(3) of the Charter (see point 184 of this Opinion).
194. The Commission claims that the contested provisions make it significantly more difficult for associations or organisations to operate in Hungary. Their existence could even be dependent on the possibility of securing cross-border support, within the meaning of Paragraph 3 of the contested law, which may give rise to an intervention by the Office. The Office could investigate the current or planned activities of all non-governmental organisations established in Hungary, including public information, opinion communication and interest promotion activities, as well as activities connected with participation in public and democratic discourse.
195. In response, Hungary contends, in essence, that, in the absence of penalties, the Office’s investigations cannot have an impact on the freedom of association.
196. The right to freedom of association constitutes one of the essential bases of a democratic and pluralist society. That right allows citizens to act collectively in fields of mutual interest and to contribute to the proper functioning of public life. (111) The right allows, inter alia, an association to pursue its activities and operate without unjustified interference by the State. (112) Thus, legislation that renders significantly more difficult the action or the operation of associations, inter alia, by limiting their capacity to receive financial resources, including those from abroad, by communicating a negative image of their activities or by exposing them to the threat of penalties, entails interference with the right to freedom of association. (113)
197. Accordingly, legislation that lays down requirements liable to have a deterrent effect on the participation of donors resident in other Member States or in third countries in the financing of non-governmental organisations and, in so doing, to hamper the activities of those organisations and the achievement of the aims which they pursue undermines that freedom. The same is true where such requirements are of such a nature as to create a generalised climate of mistrust vis-à-vis those organisations and to stigmatise them. (114)
198. As is demonstrated by a number of reports and press releases published by the Office, (115) the activities and the financing from abroad of non-governmental organisations fall within the scope of Paragraph 3(b) and (c) of the contested law (‘activities carried out with support from abroad’ which ‘may exert influence on the outcome of elections’ and ‘activities aimed at influencing the will of voters using support from abroad’) and may be classified as contrary to national sovereignty. The thereby increased risk of the Office opening an investigation into them is capable of deterring such organisations and associations from continuing their activities in Hungary or from seeking to secure support, including financial support, from abroad. In the context of such investigations, the organisations and associations concerned are subject to extensive duties to cooperate and to provide information, including in relation to their financial resources. This makes their activities, their financing and the achievement of their objectives more difficult. Similarly, the reports and press releases published by the Office following such an investigation may contain accusatory or stigmatising assessments about the activities of those organisations or associations, as demonstrated by the examples included in the case file and relied on by the Commission and by several interveners. (116)
199. The contested provisions therefore entail or may give rise to interference with the freedom of association guaranteed by Article 12(1) of the Charter.
(d)    Interference with the right to respect for private and family life guaranteed by Article 7 of the Charter
200. Article 7 of the Charter affords everyone the right to respect for his or her private and family life, home and communications.
201. The Commission argues that the contested law infringes the right to respect for private life by damaging the reputation of any person who is investigated by the Office. That effect is exacerbated by the mandatory publication of the identity of the persons concerned and of the Office’s findings on its website. In response, Hungary contends that the Office’s reports are merely objective findings and statements of facts, the disclosure of which cannot, by definition, adversely affect the right to private life or the reputation of a person or organisation.
202. Article 7 of the Charter primarily protects natural persons, although legal persons can also benefit from that article.
203. The provisions defining the scope of the contested law and those laying down the Office’s powers may concern natural persons. Such persons may be covered by an investigation by the Office, inter alia, where they carry on interest representation activities (Paragraph 3(a)(aa)), information manipulation and disinformation activities (Paragraph 3(a)(ab)) or activities aimed at influencing democratic discourse and State and social decision-making processes (Paragraph 3(a)(ac)). Similarly, those persons may be the addressees of a legally binding request for information from the Office, within the meaning of Paragraph 7(2) and (3) read in conjunction with Paragraph 8(1) of that law. In addition, under Paragraph 6(1) and (6) of the contested law, data relating to natural persons may be disclosed on the Office’s website or as part of its annual report. Lastly, pursuant to Paragraph 11 of the same law, the Office is authorised to forward such data to other competent authorities.
204. It is necessary to examine whether and to what extent those provisions may undermine the right to respect for private life of the natural persons concerned.
205. The right to respect for private and family life, enshrined in Article 7 of the Charter, (117) encompasses, inter alia, the protection of personal information which individuals can legitimately expect not to be published without their consent, in particular the protection of their reputation from attacks of a certain level of seriousness and in a manner causing prejudice to personal enjoyment of that right. (118)
206. Thus, according to the case-law of the Court, national rules imposing or allowing the communication of personal data such as the name, place of residence or financial resources of natural persons to a public authority or the dissemination of such data to the public entail, in the absence of the consent of those natural persons and irrespective of the subsequent use of the data at issue, interference in their private life. (119)
207. As I have noted in point 203 of this Opinion, the investigative findings that may be forwarded to other authorities, pursuant to Paragraph 11 of the contested law, are liable to contain personal data, such as the name of a natural person, his or her address, how he or she cooperated or did not cooperate with the Office or financial information relating to him or her. This entails in itself interference in private life.
208. It is true that both the disclosure on the Office’s website of the investigation’s findings in accordance with Paragraph 6(1) of the contested law and the publication of its annual report pursuant to Paragraph 6(3) and (6) of that law must not contain such data, with the exception of ‘personal data in the public interest’. (120) As Hungary stated at the hearing, the latter concept covers, inter alia, data contained in the companies register, such as the name of the actual owner, manager or proprietor of an undertaking, the names of directors of public undertakings, the bodies or names of individuals performing a public role, data relating to the use of public funds by entities operating with public funds, and specific information relating to procurement. Those provisions therefore provide protection, in principle, from interference in private life which may be connected with such disclosure or publication. In addition, in so far as the exception relating to ‘personal data in the public interest’ applies, its scope appears to be limited to data that may legitimately be published in the overriding public interest which must be guaranteed, inter alia, the transparency of commercial transactions. The fact remains that the publication of data of that kind by the Office can damage the reputation of the natural person concerned, if he or she is associated with negative assessments or with criticism capable of discrediting those who have engaged in negatively assessed conduct. That person could, inter alia, be criticised, under Paragraph 7(4) of the contested law, for not duly cooperating with the Office. (121) Accordingly, to that extent, even the publication by the Office of personal data in the public interest may entail interference with the private life of the natural person concerned.
209. In the present case, there is therefore no need to decide whether, in the context of such publication, a legal person as such may also rely on the protection guaranteed by Article 7 of the Charter, as has been found to be the case in competition matters, (122) inter alia, to ensure protection of its image or its reputation. (123) In any event, public accusations attaching a stigma to a legal person, such as a non-governmental organisation, which seek to call into question the objectivity and reliability of its research, information and publication activities, may also be harmful to the reputation of its directors. (124)
210. The contested provisions governing the Office’s powers of investigation and disclosure therefore entail or give rise to interference with the rights guaranteed by Article 7 of the Charter.
(e)    Justification for and proportionality of interference with the right to respect for private and family life, the freedom of expression and information and the freedom of association
211. It is therefore necessary to determine whether the identified interference with the rights guaranteed by Articles 7, 11 and 12 of the Charter is justified by the pursuit of overriding objectives in the public interest, namely the objective, upon which Hungary relies, of protecting political discourse and domestic elections.
212. Under Article 52(1) of the Charter, any limitation on the exercise of the rights guaranteed by the Charter must, inter alia, be ‘provided for by law’, be genuinely needed to achieve objectives of general interest recognised by the Union and be proportionate to that end.
213. The requirement that any limitation on the exercise of fundamental rights must be ‘provided for by law’ implies that the act providing for the interference must be founded on a legal basis in domestic law which itself defines, with sufficient clarity and precision, the scope of the limitation on the exercise of the right concerned, inter alia to make the application of that legal basis foreseeable and prevent the risk of arbitrariness. That requirement does not however preclude the limitation in question from being formulated in terms which are sufficiently open to be able to adapt to different scenarios and keep pace with changing circumstances. (125)
214. In that context, it should be borne in mind that Paragraph 3 of the contested law introduces non-specific concepts of interference ‘activities’ in the interests of other States or of foreign (legal and natural) persons that may adversely affect or jeopardise Hungary’s sovereignty, from which stems the broad discretion enjoyed by the Office (see points 58 and 59 of this Opinion). The Office may open an investigation at any time and have recourse to legally binding investigative measures, and also communicate and disclose the information gathered, without being subject to an administrative or judicial review. (126) This gives rise to a significant risk of differing interpretations, on a case-by-case basis, of the activities at issue (127) and of the need to conduct an investigation, according to the Office’s preferences. The Office may be encouraged to favour views corresponding, inter alia, to government interests, which are supposed to mirror the interest of national sovereignty, and to censor critical information. This would be to the detriment of the representation of legitimate interests that are essential for the proper functioning of the pluralist and democratic system, such as those of the opposition, of minority groups and of non-governmental organisations pursuing objectives of general interest.
215. Lastly, Hungary cannot rely on the sole regulatory limit that, prior to any publication, the Office is required to communicate its findings to the investigated organisation to allow the latter to submit its comments and reply in writing in that connection. Pursuant to Paragraph 6(8) of the contested law, the Office is not even required to refer to such comments in its published report.
216. It follows from the foregoing considerations that the interference identified with the right to private and family life, the freedom of expression and information and the freedom of association guaranteed by Articles 7, 11 and 12 of the Charter is not justified.
217. The pleas in law alleging infringement of Articles 7, 11 and 12 of the Charter are therefore well founded and must be upheld.
(f)    Infringement of the obligation of professional secrecy between lawyer and client for the purposes of Article 7 read in conjunction with Article 47 of the Charter
218. The Commission relies on an infringement of the professional secrecy between a lawyer and his or her client (‘legal privilege’), for the purposes of Article 7 read in conjunction with Article 47 of the Charter. In its view, the expression ‘any other organisation or person’, within the meaning of Paragraph 7(2) and (3) of the contested law, may include lawyers, law firms or organisations providing legal advice, as well as their clients. They may be prompted, in response to a request for information from the Office, to provide information or documents covered by legal privilege. In response, Hungary contends, in essence, that the safeguards provided in the Law on the profession of lawyer, in particular Paragraph 9 and Paragraph 13(2) and (3) thereof, are sufficient to protect legal privilege.
219. Legal privilege is inferred by the Court, inter alia, from the protection of private life under Article 7 of the Charter taking into account, as a minimum threshold of protection (Article 52(3) of the Charter), the interpretation given by the ECtHR to the corresponding guarantee provided for in Article 8(1) ECHR. (128) That guarantee protects the confidentiality of all correspondence between individuals and affords enhanced protection to exchanges between lawyers and their clients, in the context not only of the activity of defence but also legal advice. Thus, Article 7 of the Charter guarantees the secrecy of that legal advice, with regard both to its content and to its existence. (129)
220. Under the contested law, the Office has autonomous powers to conduct investigations, communicate information, carry out assessments, make proposals and disclose information which manifestly fall within the exercise of public authority responsibilities, to which individuals, in particular those under investigation, are subject. (130) However, that law does not, as such, provide for fundamental procedural safeguards for those individuals, such as legal privilege, nor does it refer to the provisions on the Law on the profession of lawyer. On the contrary, it follows from Paragraph 8(2) of the contested law that the investigation procedure conducted by the Office does
‘not constitute a procedure by an administrative authority’ and ‘administrative proceedings may not be initiated’.
221. It is true that Paragraph 9(1) and (2) of the Law on the profession of lawyer does protect legal privilege in broad terms, as it encompasses ‘all facts, information and data to which the person carrying on the profession of lawyer has access’ in the exercise of his or her activities, as well as ‘any document or other media containing matters covered by legal privilege’. Pursuant to Paragraph 9(3) read in conjunction with Paragraph 13(1) of that law, a lawyer is obliged to refuse to provide information or documents covered by legal privilege in any administrative or judicial proceedings. Under Paragraph 13(1) of the law, a lawyer cannot disclose documents and data covered by legal privilege in the course of an ‘administrative review, an inspection or an onsite investigation’ or be compelled to testify or to provide information relating to that privilege, whilst also being prevented from hampering administrative proceedings.
222. However, in the light, inter alia, of the non-administrative nature
of the Office’s procedures and investigative measures, as explicitly specified in Paragraph 8(2) of the contested law, (131) it is not apparent that the Office is actually bound by legal privilege and cannot infringe it.
223. Paragraphs 9 and 13 of the Law on the profession of lawyer apply only to administrative or judicial proceedings and to inspections or onsite investigations, in the context of which a lawyer could ‘be compelled to testify or provide information relating to legal privilege’. (132) However, the Office’s investigative procedures are neither administrative in nature nor intended to carry out inspections or onsite investigations, as Paragraph 8(1) of the contested law does not provide for the power of the Office to access the premises of the organisations concerned. Nevertheless, under Paragraph 7(3) read in conjunction with Paragraph 8(1) of that law, the Office is authorised to request from the organisations or persons subject to its investigation any information or data connected with the subject matter of that investigation using legally binding investigative measures. As clients of lawyers, those organisations and persons may hold information, data and documents covered by legal privilege which they could be called upon to communicate to the Office in accordance with their duty of cooperation. (133) Nor can it be ruled out that, in the context of subsequent administrative or judicial proceedings, potentially of a criminal nature, initiated further to the file being forwarded to the competent authorities, pursuant to Paragraph 11 of the contested law, those authorities may take cognisance of, or even use as evidence, information gathered by the Office in breach of legal privilege.
224. Lastly, even assuming the Office is bound by legal privilege pursuant to Paragraphs 9 and 13 of the Law on the profession of lawyer, on account of the exclusion, under Paragraph 8(2) of the contested law, of the initiation of administrative proceedings with respect to investigative measures adopted by the Office, there is no legal remedy as a matter of administrative law, as required by Article 47 of the Charter, (134) that allows an individual, in the course or on completion of the investigative procedures under Paragraphs 6 to 8 of the contested law, to have observance of that privilege reviewed.
225. It follows that the contested provisions relating to the Office’s investigative powers and their implementation entail interference with the legal privilege guaranteed by Article 7
read in conjunction with Article 47 of the Charter.
226. The obligation of professional secrecy between a lawyer and his or her client for the purposes of Article 7 read in conjunction with Article 47 of the Charter must therefore be found to be infringed and the present plea in law must be upheld.
(g)    Breach of the right to avoid self-incrimination for the purposes of Article 48 of the Charter
227. The Commission relies on a breach of the right to avoid self-incrimination (‘the right to remain silent’) for the purposes of Article 48 of the Charter. In its view, the obligation to cooperate laid down in Articles 7 and 8 of the contested law may include the obligation to provide self-incriminating information, which may be used against the persons concerned in the context of any subsequent or contemporaneous criminal prosecution, inter alia pursuant to Paragraph 350/A of the Criminal Code.
228. The right to remain silent, as recognised by the case-law of the Court, stems from the second paragraph of Article 47 and Article 48 of the Charter. (135) The protection afforded by that right is triggered by a request for information made in the context of criminal or punitive administrative proceedings which may culminate in the adoption of financial penalties and which impose obligations to cooperate on the accused person that may be enforced by coercive means. (136)
229. However, in the present case, as Hungary rightly points out, the refusal to respond to any request for information from the Office, even though that request is legally binding, pursuant to Paragraph 7(2) and (3) read in conjunction with Paragraph 8(1) of the contested law, is not subject to any penalty stricto sensu, and cannot be enforced by the Office itself or by another authority using coercive measures. (137) Therefore, even assuming that such a request for information concerns self-incriminating information or statements, it could not infringe the right to remain silent.
230. In addition, the Commission has not succeeded in establishing that, in the context of subsequent criminal, punitive or infringement proceedings, after evidence gathered by the Office has been forwarded to the competent authorities, in accordance with Paragraph 11 of the contested law, any self-incriminating evidence could be used against the organisation or person concerned. Paragraph 167(5) of the Code of Criminal Procedure, which is binding on those authorities, prohibits such use in principle. (138)
231. The complaint alleging breach of the right to avoid self-incrimination for the purposes of Article 48 of the Charter must therefore be rejected as unfounded.
8.      Infringement of the GDPR and of Articles 7 and 8 of the Charter
232. The Commission claims that the contested law does not satisfy the requirements laid down in Article 5(1) (principles relating to the processing of personal data), Article 6(1)(e) (processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller), Article 6(2) and (3) (legal bases for the processing), Article 9(2)(g) (processing necessary for reasons of substantial public interest) and Article 10 (processing relating to criminal convictions and offences) of the GDPR, or the guarantees under Article 8 read in conjunction with Article 7 of the Charter. Specifically, in the Commission’s view, the contested law does not provide for an appropriate legal foundation or ‘legitimate basis’, within the meaning of Article 8 of the Charter, for the processing of personal data. In response, Hungary contends, in essence, that the appropriate legal basis in that regard is Article 6(1)(e) of the GDPR as such and, in any event, that the contested law is consistent with the requirements of the GDPR.
(a)    Processing of personal data within the meaning of the GDPR
233. In so far as the procedures conducted and measures adopted by the Office involve the processing of personal data, they must comply with the provisions of the GDPR, as interpreted in the light of the guarantee provided for in Article 8 of the Charter, read in conjunction with the guarantee of the right to respect for private life recognised in Article 7 of the Charter. (139)
234. Pursuant to Article 1 of the GDPR, the subject matter and objectives of that regulation are, inter alia, to lay down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data (paragraph 1), and to protect fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data (paragraph 2).
235. Under Article 2(1) of the GDPR, that regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. Pursuant to point 1 of Article 4 of the GDPR, the concept of ‘personal data’ encompasses any information relating to an identified or identifiable natural person.
236. Under point 2 of Article 4 of the GDPR, the term ‘processing’ covers, inter alia, ‘any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means’, including the ‘collection, recording, …, use, disclosure by transmission, dissemination or otherwise making available’.
237. As set out in point 203 of this Opinion, both the scope of the contested law and the implementation of the Office’s powers of investigation also cover (activities of) natural persons. Pursuant to Paragraph 7(2) and (3) read in conjunction with Paragraph 8(1) of that law, the Office is authorised to request, inter alia, the persons concerned to produce any information or data connected with the subject matter of the investigation. As is confirmed by Paragraph 6(6) of the contested law, which concerns the publication of the annual report, the information and data gathered by the Office may include ‘personal data’ and ‘personal data in the public interest’. That fact is, furthermore, not disputed by Hungary. In addition, the collection of such information or data by means of legally binding requests for information, their recording or inclusion in the file and their use for the purposes of an assessment by the Office satisfy the concept of the ‘processing’ of such data.
238. This is also the case where that information and those data are forwarded by the Office to the competent authorities, pursuant to Paragraph 11 of the contested law. Lastly, the Office’s publication of the findings of its investigation on its website and of its annual report, pursuant to Paragraph 6(1) and (6) of that law, constitutes ‘dissemination or otherwise making available’ within the meaning of the term ‘processing’. The Office is even explicitly authorised to publish ‘personal data in the public interest’. (140)
239. It follows from the foregoing that all those measures available to the Office satisfy the concept of the ‘processing’ of personal data, within the meaning of point 2 of Article 4 of the GDPR, in the form, inter alia, of the collection, recording, storage, use, disclosure by transmission, (141) dissemination or otherwise making available.
(b)    Lawfulness of the processing of personal data founded on an appropriate legal basis
(1)    Appropriate legal basis for the processing
240. In the Commission’s view, the contested law is not an adequate legal basis for that processing of personal data.
241. Under Article 6(1)(e) of the GDPR, the processing of personal data is lawful only if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. Pursuant to the first subparagraph of Article 6(3) of that regulation, the
basis for that processing must be laid down by EU law (point
(a)) or by Member State law to which the controller is subject (point
(b)).
242. In that regard, Hungary wrongly argues that Article 6(1)(e) of the GDPR constitutes in itself an adequate legal basis for the processing of personal data. (142) It follows both from the wording of Article 6(3) and from recital 45 (143) of the GDPR that a separate and supplementary legal basis under either national law or EU law laying down the ‘basis for the processing referred to in point
(c) and (e) of paragraph 1’ is required in that regard.
243. The words ‘may contain specific provisions’ in the second sentence of the second subparagraph of
Article 6(3) of the GDPR (144) do not invalidate that assessment. Those words simply reflect the possibility available to Member States, as set out in paragraph 2 of that article (‘may’), to ‘maintain or introduce more specific provisions’ to adapt the application of the rules of the GDPR for the purpose of the lawful processing of such data pursuant to point
(c) and (e) of paragraph 1 of the article. (145)
244. It is therefore necessary to determine whether the contested law as such provides for a sufficiently precise legal basis for the purposes of Article 6(3) of the GDPR.
(2)    Lack of precision of the contested law
245. Pursuant to Article 6(1)(e) of the GDPR, the processing of personal data is lawful only where it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
246. In addition, under the second subparagraph of Article 6(3) of the GDPR, either the legal basis in question itself determines the purpose of the processing or, in the case of processing within the meaning of Article 6(1)(e) of that regulation, that purpose is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. A law governing the processing of personal data must determine clearly and precisely, using objective criteria, the substantive and procedural conditions to which access to such data is subject. (146)
247. Here, the requirement of a sufficiently clear and precise determination of the purpose of the processing is manifestly not satisfied. This is true, in particular, as regards the purpose of the collection, recording, storage, use and transmission of personal data by the Office.
248. In that regard, it should be recalled that the Office may request information about any data, including personal data, connected with the subject matter of its investigations into the activities referred to in Paragraph 3 of the contested law (see points 237 and 238 of this Opinion), for example, activities ‘aimed at influencing democratic discourse and State and social decision-making processes’. (147) In accordance with Paragraphs 6 to 8 thereof, that
law simply requires that the data in question are connected with the – potentially vast (148) – subject matter of the investigation. Those provisions limit neither the nature nor the scope of the personal information or data which the Office is authorised to request from the organisations or persons concerned. Similarly, pursuant to Paragraph 11 of the contested law, the Office is authorised to forward such data in their entirety to the other competent authorities, simply on the ground that it ‘establishes facts or circumstances which may give rise to the initiation or the conduct of infringement proceedings, criminal proceedings, administrative proceedings or other proceeding’, without the conditions or the purpose of such communication to the different authorities being clearly stated.
249. Nor do the abovementioned provisions lay down criteria governing the duration of their storage or the purpose of their use according to the type of data or the person concerned. Such data may, for example, relate to journalists working for companies or organisations operating in the press, media, information or communications sectors, who may be required to protect the anonymity of their sources. Thus, they may include, inter alia, sensitive data for the purposes of Article 9(1) of the GDPR, including ‘political opinions’ or ‘religious or philosophical beliefs’, or even ‘personal data relating to criminal convictions’ within the meaning of Article 10 of the GDPR, without the purpose of their processing being specified.
250. The contested law as such does not therefore determine clearly the purpose of the Office’s processing of personal data. At the same time, nor does that law make the Office subject, for the purposes of such processing, to the obligation to ensure that the purpose of the exercise of its investigative powers is necessary for the performance of that task carried out in the public interest with a view to implementing that
law. Since such purposes are not specified in the contested law, it is impossible to ensure or to verify that those purposes are necessary for the performance of that task carried out in the public interest.
251. Lastly, the contested law fails to provide
effective safeguards against the risks of abusive or unlawful access to or use of the personal data (149) gathered by the Office. Nor does that law provide for procedural safeguards for the persons concerned or for a judicial or administrative review capable of limiting the exercise of the Office’s broad power of investigation, assessment and dissemination in connection with personal data. (150) The only procedural safeguard provided for in the contested law is that under Paragraph 6(8) thereof, namely the submission of observations, within a period of 15 days, prior to the publication of the annual report in which the Office is minded to mention an investigated organisation and the receipt of a reply from the Office, which provides reasons in the event that those comments are rejected, within a period of 30 days.
252. Therefore, since they are imprecise, vague and incomplete, in particular as regards the lack of procedural safeguards and of any effective judicial review, the provisions of the contested law do not guarantee that the Office processes personal data in a manner consistent with the conditions required under Article 6(1)(e) and the second subparagraph of Article 6(3) of the GDPR.
(3)    Proportionality
253. Under the final sentence of the second subparagraph of Article 6(3) of the GDPR, the legal basis in question must meet an objective of public interest and be proportionate to the legitimate aim pursued.
254. Since the contested law does not satisfy the requirements of clarity, precision and foreseeability as to its application in connection with the processing of personal data, its provisions cannot be regarded as complying with the principle of proportionality in the light of the legitimate objective of public interest pursued. In that regard, Hungary has not even argued that that processing complies with the principle of ‘data minimisation’ enshrined in Article 5(1)(c) of the GDPR. In accordance with that principle, personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed. (151)
255. I conclude from the foregoing that the contested provisions authorise the Office to undertake unlawful processing of personal data, which may even entail serious interference with the fundamental rights guaranteed by Articles 7 and 8 of the Charter, without however laying down sufficiently clear and precise limits that may be regarded as proportionate in the light of the objectives of general interest pursued by the contested law. This is especially unjustifiable given the fact that that processing may concern activities which involve sensitive data, including the mere expression of a political opinion. (152)
256. The contested law does not therefore satisfy the requirements of Article 6(3) of the GDPR.
257. In those circumstances, there is no longer any need to decide whether Paragraph 27(3) of the Law on the Commissioner for Fundamental Rights, applicable mutatis mutandis to the activities of the Office pursuant to Paragraph 9(1) of the contested law, (153) may prevent or justify the publication of personal data or whether that protection is guaranteed by Paragraph 6(6) of that law. Such protection would, in any case, be insufficient to remedy the infringement of Article 6 of the GDPR identified.
258. The complaint that the contested law does not satisfy the requirements of Article 5(1), Article 6(1)(e), Article 6(2) and (3), Article 9(2)(g) and Article 10 of the GDPR, or of Articles 7 and 8 of the Charter, should therefore be upheld.
9.      Interim conclusion
259. In conclusion, the action should be upheld, with the exception of the pleas in law alleging infringement of Articles 49 and 56 TFEU and of the right to avoid self-incrimination for the purposes of Article 48 of the Charter.
VI.    Costs
260. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Here, since Hungary has been essentially unsuccessful, it must be ordered to pay the costs, since the Commission has applied for costs.
261. In accordance with Article 140(1) of those rules, the Member States and the institutions which have intervened in the proceedings are to bear their own costs. Thus, the Parliament and the interveners are to bear their own costs.
262. Pursuant to Article 140(2) of those rules, States, other than the Member States, which are parties to the EEA Agreement are to bear their own costs if they have intervened in the proceedings. The Kingdom of Norway is therefore to bear its own costs.
VII. Conclusion
263. I therefore propose that the Court should:
–        Declare that, by adopting the a nemzeti szuverenitás védelméről 2023. évi LXXXVIII. törvény
(Law No LXXXVIII of 2023 on the protection of national sovereignty), Hungary has infringed Article 63 TFEU, Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Articles 14, 16 and 19 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, Articles 7, 8, 11, 12 and 47 of the Charter of Fundamental Rights of the European Union, and Articles 5, 6, 9 and 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
–        Dismiss the action as to the remainder;
–        Order Hungary to bear the costs;
–        Order the European Parliament, the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Kingdom of Spain, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the Kingdom of Norway to bear their own costs.
1      Original language: French.
2      Magyar Közlöny
2023/185 of 21 December 2023, p. 10429.
3      The legitimacy of such protection is, in principle, also recognised by the EU institutions; see Commission Communication of 26 April 2018, entitled ‘Tackling online disinformation: a European Approach’ (available at the following address: eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018DC0236); Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union (OJ 2019 L 79I, p. 1); Commission proposal of 12 December 2023 for a Directive of the European Parliament and of the Council establishing harmonised requirements in the internal market on transparency of interest representation carried out on behalf of third countries and amending Directive (EU) 2019/1937 (COM(2023) 637 final)
(available at the following address: EUR-Lex – 52023PC0637 – EN – EUR-Lex); see also note of the General Secretariat of the Council of the European Union of 16 June 2025 (available at the following address: eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_10134_2025_INIT). See also Regulation (EU) 2024/900 of the European Parliament and of the Council of 13 March 2024 on the transparency and targeting of political advertising (OJ L, 2024/900).
4      Paragraph 3(a)(ac) of the contested law.
5      Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1) (‘the GDPR’).
6      Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1)
(‘the
Directive on electronic commerce’).
7      Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36)
(‘the “Services” Directive’).
8      Magyar Közlöny 2012/92 of 13 July 2012, p. 13450.
9      Magyar Közlöny 2013/66 of 18 April 2013, p. 49703.
10      Magyar Közlöny 2017/216 of 19 December 2017, p. 34164.
11      Magyar Közlöny 2011/88 of 26 July 2011, p. 25435.
12      Magyar Közlöny
2011/88 of 26 July 2011, p. 25449.
13      Magyar Közlöny 2017/95 of 21 June 2017, p. 9048.
14      Directive of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services
(Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1)
(‘the Audiovisual Media Services Directive’).
15      The question of whether the Commission may rely on an infringement of Article 2
TEU in the context of an action for failure to fulfil obligations has not yet been settled by the Court; see, in that regard, Opinion of Advocate General Ćapeta in Commission v Hungary (Values of the European Union) (C‑769/22, EU:C:2025:408, point 142 et seq.).
16      See, to that effect, judgments of 13 June 2018, Commission v Poland (C‑530/16, EU:C:2018:430, paragraph 30), and of 22 May 2025, Commission v Latvia (Open Data Directive and the re-use of public sector information) (C‑238/23, EU:C:2025:374, paragraph 45).
17      See, to that effect, judgments of 8 November 2007, Spain v Council (C‑141/05, EU:C:2007:653, paragraph 27); of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission (C‑654/17 P, EU:C:2019:634, paragraph 50); and of 19 November 2024, Commission v Poland (Ability to stand for election and membership of a political party) (C‑814/21, EU:C:2024:963, paragraph 56).
18      C‑204/21, EU:C:2023:442, paragraph 62 et seq.
19      See judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 69). See also, to that effect, judgment of 19 November 2024, Commission v Poland (Ability to stand for election and membership of a political party) (C‑814/21, EU:C:2024:963, paragraph 155).
20      See, to that effect, judgments of 6 October 2020, Privacy International (C‑623/17, EU:C:2020:790, paragraph 44);
of 6 October 2020,
La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 99); of 16 January 2024, Österreichische Datenschutzbehörde (C‑33/22, EU:C:2024:46, paragraph 50); of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 62); and of 19 November 2024, Commission v Poland (Ability to stand for election and membership of a political party) (C‑814/21, EU:C:2024:963, paragraph 155 and the case-law cited). See, with regard to the organisation of working time within military forces, judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraphs 36 to 46).
21      In support of this argument, Hungary relies on the judgment of 23 November 1989, B & Q (C‑145/88, EU:C:1989:593, paragraph 18).
22      See Paragraph 8(2) of the contested law.
23      See, with regard to educational services, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 48), and, as regards theatre shows and the cross-border provision of information society services, Opinion of Advocate General Ćapeta in Commission v Hungary (Values of the European Union) (C‑769/22, EU:C:2025:408, point 52).
24      This is without prejudice to the distribution channels or methods of transmission used by the authors of those activities, who may be individuals, service providers, political groups or associations representing interests. For instance, at the hearing, Hungary did not rule out that communications or information shared online on social media could fall within the scope of the contested law.
25      See, to that effect, judgments of 7 March 1990, Krantz (C‑69/88, EU:C:1990:97, paragraphs 10 to 12), and of 13 October 1993, CMC Motorradcenter (C‑93/92, EU:C:1993:838, paragraphs 10 to 12).
26      See, to that effect, judgment of 30 May 2024, Airbnb Ireland and Amazon Services Europe (C‑662/22 and C‑667/22, EU:C:2024:432, paragraph 62 et seq.).
27      Regulation of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1). Like the Office’s powers, OLAF’s powers of investigation and of data transmission under Article 3(3) (request for information in the context of external investigations) and Article 11 (communication of the final investigation report to the competent national authorities) of Regulation No 883/2013 can result in judicial, civil and criminal proceedings being initiated nationally. In the exercise of those powers, OLAF is, however, required to comply with fundamental procedural safeguards, such as the duty of diligence, a breach of which may cause the European Union to incur non-contractual liability; see judgment of 11 January 2024, Planistat Europe and Charlot v Commission (C‑363/22 P, EU:C:2024:20, paragraphs 75 to 78), and Opinion of Advocate General Medina in Planistat Europe and Charlot v Commission (C‑363/22 P, EU:C:2023:594, point 42 et seq.).
28      See Regulation (EU, Euratom) 2021/1163 of the European Parliament of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom (OJ 2021 L 253, p. 1).
29      See, to that effect, judgments of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 36 and 37 and the case-law cited), and of 19 November 2024, Commission v Poland (Ability to stand for election and membership of a political party) (C‑814/21, EU:C:2024:963, paragraphs 129 and 130 and the case-law cited).
30      See, to that effect, judgment of 22 September 2020, Cali Apartments (C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 39).
31      See the comparable situation which gave rise to the judgment of 30 May 2024, Airbnb Ireland and Amazon Services Europe (C‑662/22 and C‑667/22, EU:C:2024:432, paragraph 62 et seq.).
32      In so doing, the contested law even goes further than certain rules concerning comparable investigative tools, such as Article 18(1) and (2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), which confers on the Commission the power to ask undertakings for information on a non-binding basis; see also Article 21(1) and (2) of Regulation (EU) 2022/1925 of the European Parliament and of the Council
of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ 2022 L 265, p. 1) and Article 67(1) and (2) of Regulation (EU) 2022/2065 of the European Parliament and of the Council
of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ 2022 L 277, p. 1). The only difference in comparison to the contested law is that, if a reply to such a request for information is provided, that reply must be accurate, as incorrect or misleading information may result in the Commission imposing a financial penalty.
33      See Paragraphs 14 and 14/A of the a nemzetbiztonsági szolgálatokról 1995. évi CXXV. törvény (Law No CXXV of 1995 on the national security services). A failure to cooperate with that parliamentary committee may be punishable under Paragraph 216/A of the a szabálysértésekről, a szabálysértési eljárásról és a szabálysértési nyilvántartási rendszerről
2012. évi II. törvény (Law No II of 2012 on infringements, the infringement procedure and the system of recording infringements).
34      See, to that effect, judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 123), and Opinion of Advocated General Szpunar in Joined Cases
X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 136).
35      See, inter alia, the negative assessments of the activities of Transparency International Hungary and of the investigative portal Átlátszó
contained in the reports entitled, respectively, Inquiry Report: The impact of Transparency International Hungary’s activities on Hungarian sovereignty
(Vizsgálati jelentés: A Transparency International Magyarország tevékenységének hatása a magyar szuverenitásra), published on 14 October 2024, and Inquiry Report: The impact of Átlátszó’s activities on Hungarian sovereignty (Az Átlátszó tevékenységének hatása a magyar szuverenitásra), published on 28 October 2024 (documents available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumaink/).
36      See also the situations which gave rise to the judgments of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 124), and of 22 September 2020, Cali Apartments (C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 42).
37      See, to that effect, with regard to the freedom of establishment under Article 49 TFEU, judgment of 1 June 2010, Blanco Pérez and Chao Gómez (C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 119); with regard to the free movement of capital under Article 63 TFEU, see judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 45 to 64); with regard to the free movement of workers under Article 45 TFEU, see judgments of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812, paragraph 24); of 2 April 2020, PF and Others (C‑830/18, EU:C:2020:275, paragraph 34 and the case-law cited); and of 13 June 2024, Commission v Hungary (Reception of applicants for international protection II) (C‑123/22, EU:C:2024:493, paragraph 29 and the case-law cited).
38      The fourth
paragraph in the preamble to the contested law states: ‘If political power falls into the hands of persons or organisations who are dependent on a foreign power, organisation or individual, the sovereignty of Hungary is undermined, which, at the same time, presents a substantial risk for national security.’
39      See, to that effect and by analogy with Article 49 TFEU, judgment of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraph 75 and the case-law cited).
40      See, to that effect and by analogy, judgment of 21 December 2023, European Superleague Company (C‑333/21, EU:C:2023:1011, paragraphs 135 and 255 and the case-law cited).
41      The Commission relies here on considerations set out in the judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 93).
42      See, to that effect and by analogy with Article 49 TFEU, judgment of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraphs 67 to 70).
43      See, with regard to public funds granted by the European Union, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 78 to 80).
44      Reference is made in the preamble to the sole example of alleged illegal financing of the candidate of the political parties of the united opposition at the 2022 parliamentary elections in Hungary from a third State, namely the United States of America.
45      See Inquiry Report: The impact of Transparency International Hungary’s activities on Hungarian sovereignty (Vizsgálati jelentés: A Transparency International Magyarország tevékenységének hatása a magyar szuverenitásra) of 14 October 2024 (available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumaink/), which heavily criticises that foundation for its allegedly non-transparent, manipulative and defamatory ranking of countries in a Corruption Perceptions Index (produced at its headquarters in Berlin (Germany)) which the Office regards as ‘disinformation’. As is clear from page  9 of Commission Rule of Law Report (SWD(2020) 316 final) of 30 September 2020, in the chapter devoted to the rule of law situation in Hungary (available at the following address: EUR-Lex – 52020SC0316 – EN – EUR-Lex), in the latest Corruption Perceptions Index produced by Transparency International, Hungary scored 44/100 and is ranked 19th in the European Union and 70th globally. Similarly, the Commission relies on a report from the Office about the Western pro-war and Russian legitimacy narratives in connection with the war in Ukraine (Disinformation Narratives in Hungary) of 4 July 2024 (available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumok/western-pro-war-and-russian-legitimacy-narratives-in-connection-with-the-war-in-ukraine.pdf).
46      See the report entitled The role of Internews in influencing the media in Hungary (Az Internews szerepe a magyarországi média befolyásolásában) of 19 March 2025, not included in the case file (available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumaink/), and, with regard to the not-for-profit investigative portal Átlátszó and its research and publication activities on the subjects of non-transparency and corruption, the report entitled The impact of Átlátszó’s activities on Hungarian sovereignty (Az Átlátszó tevékenységének hatása a magyar szuverenitásra) of 28 October 2024 (available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumaink/).
47      See the report on the activities of the Ökotárs foundation, relied on by the Kingdom of Norway and entitled Analysis: The impact of the activities of Ökotárs’ on Hungarian sovereignty
(Az Ökotárs tevékenységének hatása a magyar szuverenitásra) of 16 December 2024. In that regard, the Kingdom of Norway argues that it has long been a ‘donor State’ to non-governmental organisations, in particular those active in the promotion of democracy, the rule of law and human rights. In that report, both the Kingdom of Norway and the European Union are presented as ‘accomplices’ of the United States which are seeking to conspire against Hungary and encroach upon its sovereignty. Similarly, in a press release entitled The European Commission’s CERV Programme: This is how Brussels turned on the money tap to fund the Soros network (Az Európai Bizottság CERV programja: Így nyitotta meg Brüsszel a pénzcsapot a Soros-hálózat finanszírozására) of 29 January 2025, the Commission is accused of financing and joining forces with the ‘Soros network’ (documents available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumok/).
48      See Decision 20/2024 (XI. 28.) of 15 November 2024, paragraph 41 et seq.
49      See Paragraph 8(2) of the contested law.
50      See, to that effect, my Opinions in G4S Secure Solutions (C‑157/15, EU:C:2016:382, point 97 and the case-law cited) and in Parris (C‑443/15, EU:C:2016:493, point 75 and the case-law cited).
51      For the purposes of justification for reasons of public policy and public security, within the meaning of Article 52(1) TFEU, the Court even requires that there is a genuine and sufficiently serious threat affecting a fundamental interest of society; see, to that effect, judgments of 6 February 2014, Navileme and Nautizende (C‑509/12, EU:C:2014:54, paragraph 20), and of 13 July 2023, Xella Magyarország (C‑106/22, EU:C:2023:568, paragraphs 66 and 67, in relation to security of supply).
52      See, first, the new or amended provisions of Paragraph 350/A read in conjunction with point 37 of Paragraph 459(1) of the Criminal Code and, secondly, those of Paragraph 4(3) of the contested law, as well as point 16 of Paragraph 3, Paragraph 124(1a) to (1d) and Paragraph 307/D(3) and (4) of the Law on electoral procedure.
53      That paragraph reads: ‘If political power falls into the hands of persons or organisations who are dependent on a foreign power, organisation or individual, the sovereignty of Hungary is undermined,
which, at the same time, presents a substantial risk for national security.’
54      See, inter alia, the Opinion of the European Commission for Democracy Through Law (Venice Commission) of 18 March 2024 on the contested law (paragraph 76 et seq.; available at the following address: default.aspx).
55      In accordance with the fifth paragraph of its preamble, the contested law does not appear to be confined to
financial support from abroad, but also covers other forms of support which may constitute ‘attempted foreign interference’.
56      See, for example, the case forming the subject matter of the judgment of 23 April 2020, Associazione Avvocatura per i diritti LGBTI (C‑507/18, EU:C:2020:289), in which the applicant was an association of lawyers that defends the rights of lesbian, gay, bisexual, transgender or intersex persons (LGBTI) in court proceedings. See also, with regard to the a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. törvény
(Law No LXXIX of 2021 on stricter actions against paedophile offenders and the amendment of certain laws for the protection of children), the reports by Amnesty International,
From Freedom to Censorship: The Consequences of the Hungarian Propaganda Law, Budapest, 2024, and the  Háttér Society,
The Anti-LGBTQI Law of Hungary in Action: A Combination of State- and Self-Enforcement, November 2024 (see Opinion of Advocate General Ćapeta in Commission v Hungary (Values of the European Union),
C‑769/22, EU:C:2025:408, point 80, footnote 42; report available at the following address: https://en.hatter.hu/sites/default/files/dokumentum/kiadvany/hatter-anti-lgbtqi-law-2024-november.pdf).
57      See the example of the activities of the Ökotárs foundation (footnote 47 to this Opinion).
58      See the example of the activities of Transparency International Hungary (footnote 45 to this Opinion).
59      See, in particular, the examples set out in footnote 35 to this Opinion.
60      See also the Commission Communication of 26 April 2018, entitled ‘Tackling online disinformation: a European Approach’, pp. 3 and 4, which defines the concept of ‘disinformation’ as encompassing ‘verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public, and may cause public harm’ (available at the following address: eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018DC0236).
61      See, with regard to the threats to democratic elections posed by various forms of information manipulation and disinformation activities carried out, inter alia, by foreign actors, ECtHR, 22 July 2025, Bradshaw and Others v. the United Kingdom (application No 15653/22, § 134 et seq. and § 159 et seq.). See also the Curtea Constituțională (Constitutional Court, Romania), Decision No 32 of 6 December 2024, annulling the procedure for the presidential election in Romania (and cancelling the second round of that election, scheduled for 8 December
2024), on account of systematic attempts to manipulate the will of voters by State and non-State actors, inter alia, using social media and illegal financing.
62      See, inter alia, recital 83 et seq. of Regulation 2022/2065 and recital 4, Article 19(1)(c) and Article 26(3)(a) of Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act) (OJ L, 2024/1083).
63      See the definition of ‘misinformation’ in Commission Communication of 26 April 2018, entitled ‘Tackling online disinformation: a European Approach’ (pp. 3 and 4), referenced at footnote 60 of this Opinion. However, a definition of the concepts of ‘disinformation’ or of ‘information manipulation’ is not provided in recital 4 et seq., Article 19(1)(c) or Article 26(3)(a) of Regulation 2024/1083. This is likewise the case with recital 83 et seq. of Regulation 2022/2065.
64      See footnote 45 to this Opinion.
65      See Paragraph 8(2) of the contested law.
66      See, to that effect, judgment of
27 February 2025, AEON NEPREMIČNINE and Others (C‑674/23, EU:C:2025:113, paragraph 46
and the case-law cited).
67      See, with regard to a discriminatory requirement not covered by point
(a) or point
(b), judgment of 11 June 2020, KOB (C‑206/19, EU:C:2020:463, paragraph 14).
68      See points 73 to
87 of this Opinion.
69      There is therefore no need to rule on whether or not such discrimination is justifiable. See, in the latter regard, in a case of direct discrimination, judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 45
and the case-law cited).
70      Directive of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
71      With regard to political advertising services, which may also be disseminated electronically, see Regulation 2024/900.
72      See also the second sentence of recital 21 of the Directive on electronic commerce, according to which the coordinated field covers requirements relating to online activities, such as online information and online advertising.
73      In that regard, the Commission refers to the statement of 4 December 2023 published by Media Freedom Rapid Response (MFRR) and signed by the International Press Institute (IPI), ARTICLE 19 Europe, the European Centre for Press and Media Freedom (ECPMF), the European Federation of Journalists (EFJ), Free Press Unlimited (FPU) and OBC Transeuropa (available at the following address:
https://www.article19.org/resources/hungary-draft-sovereignty-protection-act-threatens-independent-media/).
74      Emphasis added.
75      See also, to that effect, Opinion of Advocate General Ćapeta in
Commission v Hungary (Values of the European Union) (C‑769/22, EU:C:2025:408, point 319).
76      See the comparable situation which gave rise to the judgment of 30 May 2024, Airbnb Ireland and Amazon Services Europe (C‑662/22 and
C‑667/22, EU:C:2024:432, paragraphs 58
to 65); as well as Opinion of Advocate General Szpunar in
Airbnb Ireland and Others (C‑662/22 to
C‑667/22, EU:C:2024:18, point 159).
77      See also, with regard to ‘requirements’ within the meaning of the third subparagraph of Article 16(1) of the ‘Services’ Directive, points 73 to
81 of this Opinion.
78      See, by analogy, judgment of
30 May 2024, Airbnb Ireland and Amazon Services Europe (C‑662/22 and
C‑667/22, EU:C:2024:432, paragraph 63).
79      See, to that effect, judgment of
25 October 2011, eDate Advertising and Others (C‑509/09 and
C‑161/10, EU:C:2011:685, paragraphs 66
and 67). See also the comparable situation which gave rise to the judgment of 30 May 2024, Airbnb Ireland and Amazon Services Europe (C‑662/22 and
C‑667/22, EU:C:2024:432, paragraph 59).
80      See, to that effect, judgment of
9 November 2023, Google Ireland and Others (C‑376/22, EU:C:2023:835, paragraph 33 et seq.).
81      See, to that effect, with regard to the ‘Services’ Directive, judgments of
23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 118); of 14 November 2018, Memoria and Dall’Antonia (C‑342/17, EU:C:2018:906, paragraphs 41
and 42); and of
11 June
2020, KOB (C‑206/19, EU:C:2020:463, paragraph 30
and the case-law cited). See the Opinion of Advocate General Szpunar in
Joined Cases X and Visser (C‑360/15 and
C‑31/16, EU:C:2017:397, points 98
and 99 and the case-law cited). See also, to that effect, judgments of
19 May 2009, Apothekerkammer des Saarlandes and Others (C‑171/07 and
C‑172/07, EU:C:2009:316, paragraph 20); of
13 July 2023, Xella Magyarország (C‑106/22, EU:C:2023:568, paragraph 27 et seq., in particular
paragraph 49); and of
20 June 2024, Staatssecretaris van Justitie en Veiligheid (Posting of third-country workers) (C‑540/22, EU:C:2024:530, paragraph 59
and the case-law cited).
82      See also recital 24
and Article 2(2)(g) of the ‘Services’ Directive
which exclude ‘audiovisual services’ from the scope of that directive.
83      See Article 2(2)(b) of the ‘Services’ Directive which excludes ‘financial services’ from the scope of that directive.
84      See, to that effect, judgment of
8 June 2017, Van der Weegen and Others (C‑580/15, EU:C:2017:429, paragraph 25
and the case-law cited).
85      See, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 52
and 53 and the case-law cited).
86      The concept of ‘prohibited foreign support’, as defined in Paragraph 459(1) of the Criminal Code (as amended by Paragraph 32(3) of the contested law), does not appear to be of general application. First, that concept covers only support from abroad ‘the acceptance or use of which is prohibited by the Law on the operation and the management of political parties or by the Law on electoral procedure’. Secondly, that concept covers only prohibited and penalised acts of circumvention by a ‘member, manager or director of an appointments organisation within the meaning of the Law on electoral procedure, or a candidate within the meaning of that same law’, pursuant to Paragraph 350/A of the Criminal Code (entitled ‘Unlawful influence on the will of voters’ and introduced by Paragraph 32 of the contested law). Thus, the second paragraph of the preamble to the contested law, which mentions the example of the direct unlawful foreign financing of the united opposition’s candidate for the post of prime minister during the 2022 election campaign in Hungary, refers, primarily, to the amended criminal component of that law. However, it should be observed that the Commission has not disputed those criminal provisions in the context of these proceedings (see point 111 of this Opinion). Similarly, in the opinion of the European Commission for Democracy through Law (Venice Commission) of 18 May 2024 on the contested law, paragraph 71 et seq., in particular paragraphs 81 to 83 and 94 (available at the following address: default.aspx), that Commission did not call into question the permissibility as such of those provisions. It simply proposed that the concept of ‘prohibited foreign support’ be further clarified by the Hungarian legislature to prevent any foreign financial support received at any time, even outside the election process, from being penalised.
87      See also the similar concept of ‘foreign support’ defined in point 16 of Paragraph 3 of the Law on electoral procedure (‘donation from another State, a foreign natural or legal person or a foreign organisation without legal personality’). In that regard, the Commission points, as examples, to individuals or organisations active in the media (journalists, radio and television stations, the written press or even in related fields of activity such as the design and production of electronic media content), as well as lobbying, advisory, communications or public relations activities. Similarly, a Union citizen exercising his or her right of free movement who wishes to exercise the political rights guaranteed by the Treaty and to stand as a candidate in municipal or European elections or support another candidate at such elections could also be concerned.
88      See point 63 et seq. of this Opinion. See also, to that effect, with regard to the comparable situation of public funds granted by the European Union, judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 60).
89      See also, with regard to the similar situation of the grant of public funds by the European Union, judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 61
and 62 and the case-law cited).
90      See, to that effect, judgment of
21 May 2019, Commission v Hungary (Usufruct over agricultural land) (C‑235/17, EU:C:2019:432, paragraphs 60
and 61 and the case-law cited).
91      Judgment of
18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 88
and 89 and the case-law cited).
92      See Paragraph 350/A of the Criminal Code, entitled ‘Unlawful influence on the will of voters’, read in conjunction with Paragraph 459(1) of that code, as amended by Paragraph 32 of the contested law.
93      See point 111 of this Opinion.
94      See provisions of Paragraph 4(3) of the Law on the operation and the management of political parties and of point 16 of Paragraph 3, Paragraph 124(1a) to (1d) and Paragraph 307/D(3) and (4) of the Law on electoral procedure, introduced by Paragraph 33 of the contested law.
95      See, with regard to the similar situation of the grant of public funds by the European Union, judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 79 et seq.).
96      Judgment of 4 October 2024, Real Madrid Club de Fútbol (C‑633/22, EU:C:2024:843, paragraph 46).
97      See, to that effect, judgment of
29 July 2024, Alchaster (C‑202/24, EU:C:2024:649, paragraph 92
and the case-law cited).
98      See, to that effect, judgment of
4 October 2024, Real Madrid Club de Fútbol (C‑633/22, EU:C:2024:843, paragraphs 51
and 52 and the case-law cited).
99      See point 102 et seq. of this Opinion.
100      See, to that effect, judgment of
14 February 2019, Buivids (C‑345/17, EU:C:2019:122, paragraph 51).
101      Under Paragraph 3(a) of the contested law, ‘in the context of its investigative role,
the Office … shall … investigate [(aa)] interest representation activities, with the exception of diplomatic and foreign missions, and professional interest representation organisations, [(ab)] information manipulation and disinformation activities, [(ac)] activities aimed at influencing democratic discourse and State and social decision-making processes, including activities intended to influence decision-making by persons who exercise public authority responsibilities, carried out in the interest of other States and of foreign bodies, organisations and natural persons, irrespective of their legal status’.
102      With regard to such a chilling effect and the risk of self-censorship, see also ECtHR, 15 May
2023, Sanchez v. France (CE:ECHR:2023:0515JUD004558115, § 184).
103      See also ECtHR, 12 March 2019, Ali Gürbüz v. Turkey (CE:ECHR:2019:0312JUD005249708, §§ 59 to 68).
104      See also the criminal provisions laid down in Paragraph 350/A of the Criminal Code, entitled ‘Unlawful influence on the will of voters’, read in conjunction with Paragraph 459(1) of that code, as amended by Paragraph 32
of the contested law.
105      That assessment is without prejudice to a possible justification for interference with the freedom of expression and information as regards, inter alia, the exercise of ‘information manipulation and disinformation activities’ within the meaning of Paragraph 3(a)(ab) of the contested law. See also, in that regard, in relation to Article 10 ECHR, ECtHR, 22 July 2025, Bradshaw and Others v. the United Kingdom (application No 15653/22, § 161).
106      See also ECtHR, 22 November 2012, Telegraaf Media Nederland Landelijke Media B.V. and Others
v. the Netherlands (CE:ECHR:2012:1122JUD003931506, § 127).
107      See also ECtHR, 15 December 2009, Financial Times Ltd and Others v. the United Kingdom (CE:ECHR:2009:1215JUD000082103, § 70).
108      See footnote 45 et seq. to this Opinion.
109      See also ECtHR, 25 September 2012, Trade Union of the Police in the Slovak Republic
and Others
v. Slovakia (CE:ECHR:2012:0925JUD001182808, § 60), and ECtHR,
23 January 2023, Macatė v. Lithuania (CE:ECHR:2023:0123JUD006143519, §§ 181 and 182).
110      See, with regard to non-governmental organisations publicly labelled as ‘foreign agents’, ECtHR, 22 October
2024, Kobaliya and Others v. Russia (CE:ECHR:2024:1022JUD003944616, §§ 67, 75 and 82), and ECtHR, 14 June 2022, Ecodefence and Others v. Russia (CE:ECHR:2022:0614JUD000998813, § 131).
111      See, to that effect, judgment of
18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 112
and the case-law of the ECtHR cited).
112      See, to that effect, judgment of
18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 113
and the case-law of the ECtHR cited).
113      See, to that effect, judgment of
18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 114
and the case-law of the ECtHR cited).
114      See, to that effect, with regard to Hungary, judgment of
18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 118). See also, to that effect, ECtHR, 14 June 2022, Ecodefence and Others v. Russia (CE:ECHR:2022:0614JUD000998813, § 132).
115      See footnote 45 et seq. to this Opinion.
116      See footnote 35 et seq. to this Opinion.
117      According to the Court, that guarantee must be given the same meaning and the same scope as those of Article 8 ECHR (see judgment of
18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 122
and the case-law cited).
118      ECtHR,
7 February 2012, Axel Springer AG v. Germany (CE:ECHR:2012:0207JUD003995408, § 83).
119      See, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 124
and the case-law cited). See also, to that effect (and finding,
in that regard,
at the same time, interference with the right to the protection of personal data within the meaning of Article 8
of
the Charter), judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and
C‑246/19, EU:C:2020:795, paragraphs 73
and 74).
120      This authorisation refers to the definition laid down in Paragraph 3(6) of the Law on information, under which information is ‘any data other than data in the public interest, the disclosure, accessibility or availability of which is required by a law in the interest of the general public’.
121      For instance, the report entitled
The impact of Átlátszó’s activities on Hungarian sovereignty (Az Átlátszó tevékenységének hatása a magyar szuverenitásra), published
on
28 October 2024, which concerns the research and publication activities of the not-for-profit investigative portal Átlátszó on issues such as the lack of transparency and corruption, mentions by name its managing director, who is criticised for having failed to cooperate with the Office (available at the following address: https://szuverenitasvedelmihivatal.hu/dokumentumaink/).
122      With regard to visits to undertakings’ commercial premises, see judgment of 18 June 2015, Deutsche Bahn and Others v Commission (C‑583/13 P, EU:C:2015:404, paragraph 20); see also Opinions of Advocate General Pitruzzella in
Casino, Guichard-Perrachon and AMC v Commission (C‑690/20 P, EU:C:2022:579, points 33
and 34 and the case-law cited) and of Advocate General Medina in
Joined Cases Imagens Médicas Integradas and Others (C‑258/23 to
C‑260/23, EU:C:2024:537, points 31, 41 et seq.
and the case-law cited). See also, in relation to Article 8 ECHR,
ECtHR, 16 April 2002, Société Colas Est and Others v. France (CE:ECHR:2002:0416JUD003797197, §§ 40 to 42 and the case-law cited).
123      Some protection is guaranteed in that regard by professional secrecy under Article 339 TFEU. See, with regard to the right to the protection of business secrets, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraphs 131
to 133 and the case-law cited). With regard to the harm caused to the image and the reputation of a legal person by a publication by the Commission in breach of the requirements falling within the scope of professional secrecy, see judgment of 8 November 2011, Idromacchine and Others v Commission (T‑88/09, EU:T:2011:641, paragraph 42 et seq.), confirmed
by the order
of
3 September 2013, Idromacchine and Others v Commission (C‑34/12 P, EU:C:2013:552). With regard to the link between the protection of business secrets and the protection of the presumption of innocence, which is also closely linked to the protection of the reputation of a legal person, see judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306, paragraph 62 et seq., in particular paragraphs 75
to 78). See also, in that regard, judgment of 6 July 2000, Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraph 281), confirmed by the judgment of 18 September 2003, Volkswagen v Commission (C‑338/00 P, EU:C:2003:473).
124      See the example of the manager of Átlátszó who was criticised for having failed to cooperate with the Office (see footnote 121
to this Opinion). See also, with regard to the designation of such organisations as ‘foreign agents’, ECtHR, 14 June 2022, Ecodefence and Others v. Russia (CE:ECHR:2022:0614JUD000998813, § 131), and ECtHR, 22 October 2024, Kobaliya and Others v. Russia (CE:ECHR:2024:1022JUD003944616, § 75).
125      See, to that effect, judgments of
16 July 2020, Facebook Ireland and Schrems (C‑311/18, EU:C:2020:559, paragraph 175); of
8 December 2022, Orde van Vlaamse Balies and Others (C‑694/20, EU:C:2022:963, paragraph 35); of
16 November 2023, Roos and Others v Parliament (C‑458/22 P,
EU:C:2023:871, paragraphs 59
and 60); of
18 January 2024, RTL Nederland and RTL Nieuws (C‑451/22, EU:C:2024:54, paragraph 69); and of
4 October 2024, Bezirkshauptmannschaft Landeck (Attempt to access personal data stored on a mobile telephone) (C‑548/21, EU:C:2024:830, paragraph 98
and the case-law cited); see also, to that effect, Opinion of Advocate General Emiliou in
Belgian Association of Tax Lawyers and Others (C‑623/22, EU:C:2024:189, point 138). See also the judgment of 23 October 2025, Кanevi Komers DS (C‑267/24, EU:C:2025:829, paragraph 80, in which it is found that legislation is not sufficiently clear and precise to ensure its application in compliance with EU law where that legislation may be the subject of different constructions by the national court, one of which is in compliance with EU law and the other is not).
126      See Paragraph 8(2) of the contested law.
127      This also covers ‘information manipulation and disinformation activities’ within the meaning of Paragraph 3(a)(ab) of the contested law (see points 116 and
124 of this Opinion).
128      See, to that effect, judgment of
8 December 2022, Orde van Vlaamse Balies and Others (C‑694/20, EU:C:2022:963, paragraph 26).
129      See, to that effect, judgments of
8 December 2022, Orde van Vlaamse Balies and Others (C‑694/20, EU:C:2022:963, paragraph 27), and of
26 September 2024, Ordre des avocats du Barreau de Luxembourg (C‑432/23, EU:C:2024:791, paragraph 49), as well as my Opinion in
Ordre des avocats du Barreau de Luxembourg (C‑432/23, EU:C:2024:446, point 25).
130      In accordance with Paragraph 1 of the contested law, the Office is an ‘autonomous administrative organ of the State’.
131      Under that provision, ‘the Office’s investigative procedure … shall not constitute a procedure by an administrative authority and administrative proceedings may not be initiated in relation to the [investigative] activities conducted by the Office’.
132      See Paragraph 13(1) of the Law on the profession of lawyer.
133      In the application, the Commission refers to fruitless attempts by the Office to call upon the Hungarian Bar Association to cooperate with it for the purposes of implementing the contested law (available at the following address: https://szuverenitasvedelmihivatal.hu/hirek/valasz-a-magyar-ugyvedi-kamaranak).
134      See, to that effect, judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraph 50 et seq. and the case-law cited). See also, to that effect, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and
C‑246/19, EU:C:2020:795, paragraphs 83
and 84).
135      See, taking into account the case-law of the ECtHR on Article 6
ECHR, judgment of
2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 36 et seq. and the case-law cited).
136      See, to that effect, judgment of
2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 42 et seq., in particular paragraphs 55, 57 and 58).
137      Any subsequent reference to the refusal to cooperate in the published annual report, pursuant to Paragraph 7(4) of the contested law, is not a coercive measure in that regard, even though it may provide a stronger incentive for the organisation or person concerned to cooperate actively. The same is true of the possibility of the President of the Office referring the matter to the National Security Standing Committee of the National Assembly pursuant to Paragraph 12(a) of that law. In any event, the case-law of the Court has found the right to remain silent to have been infringed only where the competent authority is in a position to adopt coercive measures to ensure compliance with the obligation to cooperate; see judgment of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraphs 18, 35 et seq.). See, with regard to competition proceedings, judgments of
18 October 1989, Orkem v Commission (374/87, EU:C:1989:387, paragraph 26 et seq.); of
29 June 2006, Commission v SGL Carbon (C‑301/04 P, EU:C:2006:432, paragraph 39 et seq.); and of
28 January 2021, Qualcomm and Qualcomm Europe v Commission (C‑466/19 P, EU:C:2021:76, paragraph 147).
138      Thus, in the present case, there is no need to decide whether the level of protection of the right to remain silent differs according to whether that right is invoked by a natural or legal person, a difference which is relevant in competition matters; see judgment of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraphs 46
to 48 and the case-law cited).
139      See, to that effect, judgments of 9 November
2010, Volker und Markus Schecke and Eifert (C‑92/09 and
C‑93/09, EU:C:2010:662, paragraph 52 et seq.); of 1 August 2022, Vyriausioji tarnybinės etikos komisija (C‑184/20, EU:C:2022:601, paragraph 61); and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 330 et seq.); Opinion 1/15 (EU-Canada PNR Agreement) of
26 July 2017 (EU:C:2017:592, paragraph 123 et seq. and the case-law cited); see also, to that effect, my Opinion in Joined Cases
État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and
C‑246/19, EU:C:2020:516, point 71).
140      The concept of ‘public interest’ is defined neither in that provision nor in Paragraph 3(5) and (6) of the Law on information, which likewise offers no clarification in that regard. Paragraph 3(5) and (6) of the Law on information simply provides, first, that ‘public interest data’ are ‘information or data other than personal data’. Those concepts therefore appear to be incompatible with the phrase ‘personal data which are in the public interest’. Secondly, reference is made to ‘data accessible on public interest grounds’ which represent ‘all data other than public interest data, the disclosure, accessibility or availability of which is required by a law for the benefit of the general public’, without however mentioning ‘personal data which are in the public interest’ (emphasis added).
141      See also Opinion 1/15 (EU-Canada PNR Agreement) of
26 July 2017 (EU:C:2017:592, paragraph 124), under which the communication of personal data to a third party, such as a public authority, constitutes an interference with the fundamental right enshrined in Article 7 of the Charter, whatever the subsequent use of the information communicated.
142      See also, to that effect, judgment of
20 October 2022, Koalitsia ‘Demokratichna Bulgaria – Obedinenie’ (C‑306/21, EU:C:2022:813, paragraph 52).
143      That recital states, inter alia, that the GDPR ‘does not require a specific law for each individual processing. A law as a basis for several processing operations based on a legal obligation to which the controller is subject or where processing is necessary for the performance of a task carried out in the public interest or in the exercise of an official authority may be sufficient. It should also be for Union or Member State law to determine the purpose of processing.’
144      That provision states, inter alia, that ‘that legal basis may contain specific provisions to adapt the application of rules of this Regulation, inter alia: the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures, including measures to ensure lawful and fair processing’ (emphasis added).
145      See also the third sentence of recital 10 of the GDPR, which states: ‘regarding the processing of personal data for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Member States should be allowed to maintain or introduce national provisions to further specify the application of the rules of this Regulation’ (emphasis added).
146      See, to that effect, judgments of
21 June 2022, Ligue des droits humains (C‑817/19, EU:C:2022:491, paragraph 219
and the case-law cited), and of
30 April 2024, La Quadrature du Net and Others (Personal data and action to combat counterfeiting) (C‑470/21, EU:C:2024:370, paragraph 152
and the case-law cited).
147      Paragraph 3(a)(ac) of the contested law.
148      With regard to the broad scope of the Office’s powers of investigation in relation to information that may be gathered in connection with the various activities covered, see, inter alia, points 75 to
80 and
102 to
106 of this Opinion.
149      See, with regard to that requirement, judgments of 21 June 2022, Ligue des droits humains (C‑817/19, EU:C:2022:491, paragraph 219
and the case-law cited), and of 30 April 2024, La Quadrature du Net and Others (Personal data and action to combat counterfeiting) (C‑470/21, EU:C:2024:370, paragraph 152
and the case-law cited).
150      See, with regard to that requirement, judgment of 4 October 2024, Bezirkshauptmannschaft Landeck (Attempt to access personal data stored on a mobile telephone) (C‑548/21, EU:C:2024:830, paragraph 90 et seq.); see also, to that effect, Opinion of Advocate General Szpunar in
Legal Newsdesk Sweden (C‑199/24, EU:C:2025:670, points 35
and 36).
151      See, to that effect, judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija (C‑184/20, EU:C:2022:601, paragraph 93
and the case-law cited).
152      With regard to the justification for such interference with the rights enshrined in Articles7 and 8 of the Charter by the objective of combating serious crime and preventing serious threats to public security, see judgment of 2 March 2021, Prokuratuur (Conditions of access to data relating to electronic communications) (C‑746/18, EU:C:2021:152, paragraph 33
and the case-law cited).
153      That provision states, inter alia, that, ‘in relation to the activities referred to in Paragraphs 7 and 8, the Office shall duly apply Paragraph 27(1) and (3) of [the Law on the Commissioner for Fundamental Rights]’. Paragraph
27(3) of that law provides that documents and material evidence obtained in the course of the investigation by the Commission for Fundamental Rights are not public.