OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 12 February 2026 (1)
Case C‑225/24
European Parliament
v
European Commission
( Action for annulment – Commission Decision C(2023) 9014 of 13 December 2023 – Regulation (EU) 2021/1060 – Article 9(1) and Article 15 – Annex III – Horizontal enabling condition ‘Effective application and implementation of the Charter of Fundamental Rights’ – Legislative reforms concerning judicial independence deficiencies in Hungary )
I.      Introduction
1.        Starting with the multiannual financial framework (‘the MFF’) for the years 2021 to 2027, the rule of law conditionality has become a part of all financial instruments through which the EU budget is managed and disbursed.
2.        The present case concerns the application of such conditionality, in so far as it relates to the independence of the judiciary, within the framework of the financial rules governed by the Common Provisions Regulation (‘the CPR’). (2)
3.        The Court is faced with an action brought by the European Parliament requesting the annulment of Commission Decision C(2023) 9014 (‘the contested decision’), (3) by which the latter institution lifted in December 2023 the suspension on the disbursement of funds governed by the CPR for a number of programmes approved for financing in Hungary.
4.        The case raises novel questions relating to the European Commission’s discretion and obligations in assessing whether an individual Member State has fulfilled the specific conditions agreed for the disbursement of funds – questions which may also be relevant for other financial frameworks.
II.    Background
A.      Conditionality under different EU financial instruments
5.        Before I explain and engage with the pleas raised by the Parliament in this action, in order better to understand the context of the case, it is necessary to briefly present the relationship between the different financial instruments that establish judicial independence as an EU budgetary condition for Hungary. (4)
6.        As I stated in the introduction, payments from the EU budget, agreed under the MFF for 2021 to 2027, were subject to the recipient Member State respecting the rule of law. That is set as a general rule by the Conditionality Regulation, (5) which ‘establishes the rules necessary for the protection of the Union budget in the case of breaches of the principles of the rule of law in the Member States’. (6)
7.        Part of the rule of law conditionality is the obligation imposed on Member States to ensure a functioning and independent judiciary as a means of guaranteeing that EU funds are used for their intended purpose, thus safeguarding the financial interests of the European Union. (7)
8.        That obligation to ensure an independent judiciary was included, in one form or another, in more specific financial frameworks. In the CPR, which is at issue in the present case, that condition is included as one of the horizontal enabling conditions (HECs), referred to as the ‘effective application and implementation of the Charter of Fundamental Rights’ (‘the Charter HEC’). (8)
9.        Under a different financial framework, the Recovery and Resilience Facility Regulation (‘the RRF Regulation’), (9) the conditions for the disbursement of payments under that facility are referred to as ‘targets’ and ‘milestones’. (10) The horizontal conditions, without the fulfilment of which no payment can be initiated under that financial framework, are commonly referred to as ‘super milestones’.
10.      The CPR and the RRF Regulation contain financial rules governing the different funds used to allocate the EU budget. The CPR groups together the rules relating to the majority of the ‘traditional’ EU funds used to finance different EU policies, including the EU cohesion policy. The RRF was created under the third paragraph of Article 175 TFEU, which enables the funding of actions outside of the funds, and is the main spending programme of the NextGenerationEU instrument
(‘the NGEU’). (11)
11.      In relation to Hungary, a number of specific conditions and measures were agreed upon within the RRF Regulation framework in order to achieve an independent judiciary. (12) Of the 27 super milestones set out therein, without the fulfilment of which
Hungary cannot receive any payment under the RRF Regulation, 4 concern judicial independence. (13) Those milestones are identical (except for the stakeholder consultation requirement) to the requirements adopted under the CPR as part of the Charter HEC for Hungary. (14)
12.      As of today, no payments have yet been made to Hungary under the RRF Regulation as the Commission concluded that the reforms required by the super milestones had not been implemented. (15) That suspension has not yet been lifted. (16)
13.      Finally, the rule of law conditionality was also applied in relation to Hungary under the Conditionality Regulation. Suspension of payment or other measures under that regulation are subsidiary to the measures which can be taken for the protection of the budget under different legislation, including the CPR and the RRF Regulation. (17)
14.      Pursuant to the Conditionality Regulation, on 12 December 2022 the Council adopted a decision (18) establishing measures to protect the Union budget from breaches of the principles of the rule of law in Hungary. The Commission proposed (19) those measures as a result of serious, systemic, widespread and intertwined irregularities, deficiencies and weaknesses in public procurement procedures in Hungary and limitations concerning prosecution of the corruption in that Member State. (20) By that decision, the Council suspended 55% of budgetary commitments (21) for three cohesion policy programmes (22) for the period from 2021 to 2027. (23)
15.      While that suspension under the Conditionality Regulation has not yet been lifted, the suspension of payments for the same three programmes under the CPR was lifted by the contested decision on 13 December 2023.
16.      On the same day, on the basis of Article 7(2) of the Conditionality Regulation, and without a written notification from Hungary seeking the lifting of the measures, the Commission, on its own initiative,
adopted a decision reassessing the situation in Hungary. (24) It found that Hungary had not remedied the situation that led to the adoption of the budgetary measures under the Conditionality Regulation. As a consequence, the Commission did not propose to the Council that the measures be lifted or adapted under that regulation. (25)
B.      Steps leading to the contested decision
1.      Procedure under the CPR and the approval decisions
17.      Under the CPR, the programmes proposed by Member States for financing are approved by the Commission. (26)
18.      The EU budget is, under that financial framework, allocated on the basis of the principle of shared management in accordance with the detailed rules established in Article 63 of the Financial Regulation. (27) When implementing the budget, Member States and the Commission must ensure respect for horizontal principles, including respect for fundamental rights and compliance with the Charter, as required by Article 9(1) of the CPR.
19.      According to Article 10 of the CPR, each Member State must prepare a Partnership Agreement (PA) setting out the strategic orientation for programming and the arrangements for using the CPR funds in an effective and efficient way. Based on Article 12 of the CPR, those PAs must then be assessed by the Commission
in respect of their
compliance
with the CPR
and the fund-specific
rules.
20.      According to Article 15(2) of the CPR, when preparing PAs, Member States
must
self-assess whether the enabling conditions
linked to the selected specific objective are fulfilled. When a Member State considers that an enabling condition is fulfilled it informs the Commission, which, according to Article 15(4) of the CPR, carries out an assessment as soon as possible and no later than 3 months after receiving that information, and informs the Member State whether it agrees with its assessment. An enabling condition is fulfilled ‘where all the related criteria are met’, (28) which is a standard that binds both a Member State and the Commission in the assessment of the fulfilment of the enabling conditions.
21.      Annex III to the CPR contains horizontal enabling conditions, which are, according to Article 15(1) of that regulation, applicable to all specific objectives. Those conditions must be fulfilled before any payment from the funds is made. One of the horizontal enabling conditions set in Annex III to the CPR is the Charter HEC, under which recipient Member States are, inter alia, required to have in place ‘arrangements to ensure compliance of the programmes supported by the Funds and their implementation with the relevant provisions of the Charter’.
22.      On 22 July 2022, when applying for financing under the funds regulated by the CPR, Hungary considered that all horizontal enabling conditions, including the Charter HEC, had been fulfilled. (29)
23.      On 22 December 2022, the Commission adopted the approval decisions for 10 operational programmes financed under the CPR funds in Hungary for the period from 2021 to 2027. (30)
24.      However, while assessing those programmes, the Commission identified four
major deficiencies
under the Charter HEC in Hungary, which concerned
(i) judicial independence, (ii) academic freedom, (iii) the so-called child protection law and (iv) the right to asylum.
25.      With respect to the Charter HEC concerning deficiencies relating to judicial independence in Hungary, the
recitals of the approval decisions recognise that ‘repeated concerns have been raised within the framework of the European Semester and the Rule of Law Mechanism with regard to judicial independence in Hungary’. (31) Those recitals then describe those concerns in more detail and refer to the procedures agreed under the RRF Regulation in which Hungary agreed to undertake certain reforms to achieve judicial independence.
26.      The Commission, therefore, approved all 10 programmes and set the amount of financial support and the co-financing rates, (32) but suspended the disbursement of those payments until Hungary had fulfilled the Charter HEC.
27.      The HECs are addressed in the same way in Article 3 of each approval decision. In particular, Article 3(2) thereof
outlines the detailed conditions that must be fulfilled by Hungary in order to address the non-fulfilment of the Charter HEC with regard to the deficiencies in judicial independence. That provision reads:
‘As regards the horizontal enabling condition “3. Effective application and implementation of the Charter of Fundamental Rights”, the following shall apply:
In regard of the deficiencies in judicial independence, the enabling condition is fulfilled once Hungary has put in place the following amendments and those amendments are being applied:
(a)      legislative amendments strengthening the role and powers of the National Judicial Council (NJC) to effectively counterbalance the powers of the President of the National Office for the Judiciary (NOJ), as set out in paragraph 3;
(b)      legislative amendments amending the rules on the election of the Kúria President, legislative amendments and other amendments to the rules on the case allocation scheme of the Kúria, and legislative rules amending the rules on the functioning of the Kúria, as set out in paragraph 4;
(c)      legislative amendments amending:
(i)      Sections 666 et seq. of the Hungarian Criminal Procedure Code, in order to remove the possibility for the Kúria to review the legality of the decision of a judge to make a preliminary reference to the Court of Justice of the European Union;
(ii)      Section 490 of the Hungarian Criminal Procedure Code on staying the proceedings, in order to remove any obstacle to a court to make a preliminary reference in line with Article 267 TFEU;
(d)      legislative amendments removing the possibility, introduced in 2019 by amending Section 27 of Act CLI of 2011, for public authorities to challenge final judicial decisions before the Constitutional Court.’ (33)
28.      Article 3(3) and (4) of the approval decisions then expounds on what exactly is expected from Hungary in relation to the reforms listed in Article 3(2)(a) and (b)
thereof. (34)
29.      Finally, Article 3(5) of the approval decisions states that ‘once Hungary has informed the Commission that the measures remedying the deficiencies as regards judicial independence referred to in paragraphs 2, 3, and 4 are in place and being applied, a new assessment will take place.’ (35)
2.      Events preceding the contested decision
30.      On 18 July 2023, Hungary informed the Commission that it considered that the reforms it had undertaken satisfied the Charter HEC.
31.      In particular, on 3 May 2023, the
Országgyűlés (National Assembly, Hungary) adopted the act on judicial reforms (Act X of 2023), (36) which entered into force on 1 June 2023. That act amended a number of other legislative acts relating to the organisation and functioning of the Hungarian judicial system, including the act relating to judicial staff (Act LXVIII of 1997), (37) the act on the Constitutional Court (Act CLI of 2011), (38) the act on the organisation of courts (Act CLXI of 2011), (39) the act relating to the status of judges (Act CLXII of 2011), (40) and the act on criminal procedure (Act XC of 2017). (41)
32.      The Commission considered that the information received did not allow it fully to assess whether the Charter HEC in relation to judicial independence had been fulfilled and therefore requested further information from Hungary on 26 September 2023 and again on 1 November 2023. Hungary responded to those requests in December of that year.
33.      In response to certain remaining problems in the Hungarian system organising the judiciary, which were
flagged by the Commission, Hungary adopted additional legislation. On 7 December 2023, it adopted Decree
18/2023, (42) which introduced changes to the court administration rules relating to the case allocation system. That decree entered into force on the sixty-first day following its publication, that is to say, on 6 February 2024.
34.      On 13 December 2023, Hungary adopted Section 35 of the act amending university laws (Act LXXXV of 2023) (43) which amended
Paragraph 490(1) of the act on criminal procedure (Act XC of 2017) in order to remove a limitation to rules applicable in criminal proceedings concerning preliminary references. Section 35 thereof entered into force on the sixty-first day following its publication; that is to say, on 13 February 2024.
35.      In its application, the Parliament refers to two other legislative amendments, which preceded the contested decision and which it deems relevant for the present action.
36.      Thus, Section 3 of the act amending university laws
(Act LXXXV of 2023) inserted a new Section 16/A into the act on the Constitutional Court (Act CLI of 2011) which introduces a new power for the Alkotmánybíróság (Constitutional Court, Hungary) to provide an opinion to the Court of Justice, within the framework of a preliminary ruling procedure, on matters of national sovereignty.
37.      Finally, on 12 December 2023, Hungary adopted the law on the protection of national sovereignty (Law LXXXVIII of 2023). (44)
3.      The contested decision (45)
38.      On 13 December 2023, the Commission adopted the contested decision, by which it concluded that Hungary satisfied the Charter HEC in relation to judicial independence. It therefore lifted the suspension on the disbursement of funds for the programmes that related only to that part of the Charter HEC. On that basis, Hungary became eligible to receive approximately EUR 10.2 billion from several Union funds governed by the CPR.
39.      Article 1 of the contested decision states that the Commission approved the letter annexed to that decision containing its (re)assessment of the Charter HEC based on Article 15(4) of the CPR with regard to the deficiencies in judicial independence in Hungary.
40.      That assessment letter, after evoking the 10 programmes
concerned, reproduces the list of amendments listed in the approval decisions that had to be put in place by Hungary and on the basis of which the Commission would consider the Charter HEC with respect to judicial independence.
41.      The assessment letter also provides the timeline of the formal exchanges that took place between the Commission and Hungary. (46)
42.      The assessment letter then states, without providing further details, that the Commission, pursuant to Article 15(4) of the CPR, carried out an assessment of the information submitted to it based on which it considered that the Charter HEC with respect to judicial independence had been fulfilled in Hungary. For that reason, Hungary’s expenditure in relation to certain programmes – for which the Charter HEC was originally considered not to have been fulfilled due to deficiencies in judicial independence – could be reimbursed to Hungary. (47)
43.      Furthermore, that assessment letter reiterates that the Commission has not approved the disbursement of funds for several programmes under the CPR because of persisting deficiencies in Hungary with respect to academic freedoms, Hungary’s child protection law and the right to asylum. (48)
44.      The contested decision, addressed to Hungary, has not been published.
45.      By way of a press release issued on 13 December 2023, the same day as the contested decision, the Commission informed the public of the contested decision through which it released the funds in a number of programmes under the CPR. In the same press release, it also informed the public of its further decision, also of the same day, to maintain the suspension of budgetary commitments under the Conditionality Regulation. (49)
III. Forms of order sought
46.      By an application dated 25 March 2024, the Parliament requested that the Court annul the contested decision and order the Commission to pay the costs.
47.      The Commission requested that the Court dismiss the application and order the Parliament to pay the costs.
IV.    Procedure before the Court
48.      On 26 July 2024, the President of the Court granted Hungary leave to intervene in support of the form of order sought by the Commission.
49.      A hearing was held on 14 October 2025 at which the Parliament, the Commission and the Hungarian Government
presented oral argument.
V.      Analysis
50.      In support of its action for annulment of the contested decision, the Parliament relies on three pleas in law, the first of which is divided into six parts. By those pleas, the Parliament alleges that the Commission (i) infringed Article 9(1) and Article 15 of the CPR and Annex III thereto, and committed a manifest error of assessment; (ii) infringed its duty to state reasons; and (iii) misused its powers.
51.      Before I turn to my
analysis of each of those pleas, I will first address several preliminary issues, which are relevant for determining how the Court should proceed with judicial review in the present case.
A.      Preliminary issues
52.      The Parliament and the Commission disagreed on
the appropriate standard of review that the Court should apply when assessing the Commission’s decision on the fulfilment of the enabling condition relating to the independence of the judiciary under the CPR.
53.      The Parliament considers that such an assessment requires a full review by the Court. On the contrary, the Commission is of the view that the review carried out by the Court should only determine whether the Commission committed a manifest error of assessment. (50)
54.      In principle, the intensity of review performed by the Court will depend on the degree of deference the Court should give to an EU institution in respect of the decision under review. That, in turn, will depend on whether or not, and to what extent, the applicable law leaves discretion to the institution in adopting that decision. In principle, the broader the discretion left to the institution, the less intrusive the Court’s review should be, as it need examine
only the limits of that discretion.
55.      In that respect, it seems that two different steps can be distinguished in relation to the rule of law criterion as part of budgetary conditionality.
56.      In the first step, the EU institutions (the Commission alone under the CPR, and the Council on the proposal from the Commission under the RRF and the Conditionality Regulations) lay down the specific requirements which a particular Member State must satisfy –
in order to secure payment from the budget – so as to protect the financial interests of the European Union.
57.      At that stage, as the parties to these proceedings have agreed, the Commission enjoys discretion to assess the situation in a Member State and decide which conditions are necessary and sufficient to safeguard the European Union’s budgetary interests. That discretion is, in the first place, limited by the purpose of the rule of law conditionality in the budgetary context, which is to ensure the proper use of EU funds. (51) In the second place, in the context of the CPR, that discretion is guided by Article 9(1) of the CPR, which requires both Member States and the Commission to ensure respect for fundamental rights and compliance with the Charter in the implementation of the funds, as well as by Article 15 of and Annex III to the CPR, which list the horizontal enabling conditions, including the Charter HEC. Those provisions require the Commission to ensure respect for
the Charter, but are silent as to the precise means of doing so.
58.      Therefore, the Commission enjoys certain discretion to determine what is necessary to ensure respect for the Charter HEC in an individual Member State and it can impose, within the boundaries of its discretion, the specific requirements which that State must fulfil before payment from the budget is allowed.
59.      In relation to the 10 programmes proposed by Hungary, the Commission exercised such discretion when adopting the approval decisions. As the Commission stressed at the hearing, those decisions were not challenged. Therefore, how the Commission exercised its discretion when adopting those decisions and laying down concrete requirements for Hungary under the Charter HEC is not at issue in the present case.
60.      The present case calls for
a judicial review of the Commission’s decision taken in the second step.
61.      In the second step, after the Member State that was required to take measures to conform to the Charter HEC informs the Commission that such measures have been taken, the Commission must, in accordance with Article 15(4) of the CPR, assess whether the conditions agreed upon have been fulfilled.
62.      In that step, the Commission does not, in principle, enjoy any discretion. Article 15(2) of the CPR provides that an enabling condition is fulfilled where all the related criteria are met, which, to my mind, includes the specific Charter HEC requirements established for
a
particular Member State in approval decisions.
63.      In other words, once the Commission has set the specific requirements in the approval decisions, it can decide to enable payment only if all those requirements
are met.
64.      That means that the judicial review by the Court must focus
on the correctness
of the Commission’s assessment concerning
a Member State’s
fulfilment of
each requirement. That is a factual assessment requiring, in the present case, an analysis of Hungarian reforms. Part of the Parliament’s claims (for example its claim in relation to the new legislation on the points system for the election of judges or its claim in relation to the new rules on the election of the President of Kúria (Supreme Court)) require such a review on the appropriateness of Hungarian reforms. Given that the Commission has no discretion in that respect, the mere finding of an error of assessment should result in the annulment of a decision. In other words, to ensure the European Union’s financial interests, the Court must be satisfied that there are no errors of assessment, and not merely that there are no manifest errors of assessment of the amendments implemented by Hungary.
65.      With that said,
many of the Parliament’s complaints in the present case are not of that nature. That institution is not challenging, or at least not in the majority of its arguments, the factual findings of the Commission, even though it describes its pleas in terms of ‘flawed assessment’. (52) There is no dispute regarding, for instance, whether or not certain pieces of Hungarian legislation were in force at the time when the contested decision was adopted. Rather, the dispute
giving rise to the Parliament’s claims, in essence, concerns the question of whether the Commission had some leeway to release the funds even though the imposed requirements were not fulfilled to the last detail.
66.      To my mind, the answer to that question can be found only when considered in the light of
the purpose of the imposition of the Charter HEC, which is to ensure that the financial interests of the European Union are safeguarded. In that respect, when it adopts a decision lifting the suspension of payments, the Commission should have some leeway when
deciding
whether
or not there still exists a risk to the European Union’s financial interests, even if some of the concrete requirements are not (yet) – or at least not fully – fulfilled. Equally, the Commission must also take into consideration any other relevant developments – whether they be legislative or practical developments in the Member State under review – and have the
power to refuse to
release the funds on the basis that those developments diminish or undermine the concrete reforms undertaken under the Charter HEC. Such discretion must be available to the Commission in order to
account
for particular situations which cannot be predicted in advance.
67.      However, the Court must be able to perform its judicial review by taking account of the Commission’s ‘adjustments for reality’. For that purpose, if the Commission, in its decision lifting the suspension of payment, departs from one of the concrete conditions set under the Charter HEC, it must provide reasons as to why it nevertheless considered each requirement to have been fulfilled in substance so that the financial interests of the European Union are not at risk.
68.      Such an explanation by the Commission is due at the moment of the adoption of a decision, because, without it, it would be difficult to assess whether a judicial review is necessary in the first place. Even if such a decision is formally addressed solely to the Member State concerned, there are larger public interests behind that decision, namely the disbursement
of public money. For that reason, and especially in situations
where the release of the funds had previously been suspended, the Commission owes an explanation not only to Hungary, but to the EU citizenry at large. That is also an argument in favour of requiring
the
publication of such a decision. (53)
69.      With that in mind, in the present case, the Court must
assess
whether the Commission, in fact, decided to release the funds despite the concrete requirements under the Charter HEC for Hungary not having
been fulfilled, and whether its
justification for
departing from some of those requirements is sufficient to allow the Court to conclude that there no longer exists any risk to the financial interests of the European Union.
70.      The main arguments raised by the Parliament in its first plea are
(i) that the Commission did not thoroughly conduct the assessment of the legislative reforms in Hungary which it itself required in the approval decisions; (ii) that not all of the reforms were in place at the time when the Commission adopted
the contested decision; and (iii) that the Commission did not take into consideration other relevant developments not addressed in the approval decisions. The Parliament’s main argument in its second plea is that the reasoning required in the contested decision was missing.
71.      I propose that the Court should be guided by the following in assessing such arguments.
72.      First, it seems clear to me that the Commission is bound by the requirements that it has itself set for Hungary in the approval decisions. As stated by the Commission, each of the specific requirements, designed to respond to one or more of the identified deficiencies, must have a direct link to the management and implementation of the funds. Therefore, one must presume that without the fulfilment of those requirements, the European Union’s financial interests would remain at risk. In that respect, Hungary must implement all the reforms indicated in those decisions and the Commission cannot, in principle, release payments before such a time.
73.      Second, as noted above, it may be too rigid to require that the reforms be implemented to the last detail, as the Commission must be in a position to adjust its assessment to each individual situation. However, if the Commission concludes that Hungary has, in general, satisfied the requirements of judicial independence so that the funds can be released, it must explain how the non-fulfilment of certain conditions does not represent a risk to the European Union’s financial interests.
74.      Third, where the Commission has requested that a Member State adopt concrete legislative amendments, as it did in the approval decisions, (54) it should not, in principle, adopt a decision lifting the suspension before the required legislation is
in force. Likewise, if the requirement relates to the implementation of the legislation in practice, the Commission must assess and be satisfied with the factual implementation of the legislation before enacting a decision lifting the suspension of payment. If, on the contrary, the Commission considers that the mere proposal or adoption of a piece of legislation already satisfies the imposed requirements
prior to its entry into force and/or implementation, it should explain how that is so.
75.      Fourth, in principle, the Commission cannot impose additional requirements that were not included in the approval decisions as further conditions for the disbursement of funds. However, if new legal developments (legislation, case-law or similar) occur in the period between the adoption of the approval decisions and the adoption of the decision lifting the suspension of payment, the Commission must take them into consideration, provided that those developments are of such a nature as to influence the purpose of the reforms that were required under the approval decisions. Turning a blind eye to such developments would be contrary to the purpose of the rule of law conditionality. It would also run counter to Article 15(6) of the CPR, which obliges the Member States and the Commission to ensure that enabling conditions remain fulfilled and respected throughout the programming period.
76.      In the light of the foregoing, I will now examine each of the Parliament’s allegations in the order in which that institution brought them in its application before the Court.
B.      First plea in law: infringement of Article 9(1) and Article 15 of the CPR and Annex III thereto, and manifest errors of assessment
77.      The Parliament’s
first plea is divided into six parts, alleging that
(i) not all amendments were in force on the date of the contested decision; (ii) the assessment of the reforms relating to the NJC was flawed; (iii) the assessment of the reforms relating to the independence of the Kúria (Supreme Court)
was flawed; (iv) the assessment of the reforms relating to judicial appointments was flawed; (v) the assessment of the reforms concerning preliminary references
was flawed; and (vi) the Commission did not take into account all elements
relevant for the assessment.
1.      First part of the first plea: not all amendments were in force on the date of the contested decision
(a)    Main issues and arguments of the parties
78.      Article 3(2) of the approval decisions provides that the Charter HEC will be considered fulfilled once Hungary has ‘put in place the [amendments listed therein] and those amendments are being applied’.
79.      The Parliament claims that the Commission erred when it adopted the contested decision before Decree
18/2023
on the Kúria (Supreme Court) case allocation system – which sets out detailed registration rules and outlines that court’s obligation to publish weekly updates on its website – and Section 35 of the act amending university laws (Act LXXXV of 2023) – which removed the words ‘applicable in the criminal procedure’ from Paragraph 490(1) of the Code of Criminal Procedure which the Commission considered to be an impediment to submitting preliminary references to the Court of Justice – became applicable. Both acts became effective 61
days after publication, that is to say, on
6
and
13 February
2024, respectively.
80.      The Commission claims that, under the act on judicial reforms (Act
X of 2023), ‘almost all’ of the amendments required by the approval decisions were in force and being applied from
1 June
2023. The two amendments that had not yet entered into force at the moment of the adoption of the contested decision are, in the Commission’s view, merely additional clarifications of measures already in force. The Hungarian Government, intervening in support of the Commission, asserts that the two amendments to which the Parliament refers were made to ensure the adoption of the additional detailed rules which were drafted and proposed on the basis of an exhaustive assessment by the Commission.
81.      Furthermore, the Commission considers that it could not request additional clarifications, as provided for under Article 15(4) of the CPR, since that would only be possible in the case of a negative assessment. It adds that it had asked for clarifications on two previous occasions, which had already delayed its decision for much longer than the period of three
months required by that provision.
(b)    Analysis
82.      Article 15(4) of the CPR requires the Commission to carry out, ‘as soon as possible and no later than 3 months’ after receipt of the relevant information, an assessment and inform the Member State in question whether it agrees with the latter’s self-assessment of their fulfilment of the HECs. However, when the Commission lacks sufficient information to come to either a positive or a negative decision, there is nothing to prevent it from asking for additional information, as the Commission had indeed done on two previous occasions in the present procedure (see point 32 of the present Opinion).
83.      The second, third and fourth subparagraphs of Article 15(4) of the CPR regulate only the procedure in the case of a negative assessment by the Commission. However, that provision, and the CPR more generally, is silent on the possibility for the Commission to ask for additional clarifications.
84.      In my view, it is as much in the interest of the Member State in question, as it is in the interest of an effective and quick performance of the procedure, that the Commission should have the possibility to ask for further clarifications before it comes to either a positive or a negative decision. If the Commission does not have sufficient information, it cannot come to a positive decision and, therefore, in the interest of the proper implementation of the EU budget, could only adopt a negative one. In such a scenario, the entire procedure would have to start again, affording the Commission another three months to come to a decision after the Member State at issue has informed it of its implementation of the required reforms.
85.      In that sense, the requirement for clarification, therefore, does not necessarily prolong the period to the detriment of a Member State, but rather it enables the Commission to come to a positive decision
more quickly. For that reason, and contrary to what the Commission contended, the suspension of the procedure while waiting for the clarification, or entry into force of new legislation, is not an infringement of the right of a Member State to receive a reasoned assessment as soon as possible.
86.      That means that, under the CPR, the Commission was not prevented from asking for additional clarifications, nor was it prevented from waiting for the entry into force of the reforms in question before it adopted a positive decision.
87.      In that light, it should be recalled that Decree
18/2023 and Section 35 of the act amending university laws (Act LXXXV of 2023) both became applicable in February 2024. The fact that the Commission had insisted on the addition of those amendments to the legislation reflects that the Commission viewed such amendments as not merely being ‘additional’ but rather quite necessary – hence, forming part of the aspects ‘to be applied’ before the adoption of any positive assessment.
88.      Since they were not yet applied, which was part of the conditions set in the approval decisions, the Commission infringed its obligations by adopting the contested decision prematurely, without providing any justification for such a decision.
89.      I therefore propose that the Court uphold the first part of the first plea as well
founded.
2.      Second part of the first plea: flawed assessment of the reforms concerning the NJC
(a)    Main issues and arguments of the parties
90.      In the approval decisions, the Commission found that the creation of the NOJ – which administers the courts and is headed by a president with broad administrative powers – poses a clear risk of arbitrary decisions regarding judges’ careers, including their transfer and removal from the pool of judges hearing administrative cases. (55) On account of that risk, Article 3(3) of the approval decisions requires legislative amendments establishing stronger powers for the NJC so that it can effectively exercise its constitutional role in supervising the NOJ. In particular, point (b) of the fifth subparagraph of Article 3(3) of the approval decisions requires that the NJC be granted full legal capacity and budgetary autonomy. Point (d) of the fifth subparagraph of Article 3(3) thereof requires
Hungary to make changes to the rules governing the election of judges to the NJC, and point (a) of the third subparagraph of Article 3(3) requires that the NJC be empowered to give binding opinions on regulations relating to the points system for the assessment of applications for judicial positions.
91.      To meet those requirements, Hungary adopted Section 45 of the act on judicial reforms (Act
X of 2023), by which it strengthened the administrative and financial independence of the NJC. (56) However, that amendment provided that, for a period of nine months from its entry into force, the NJC’s budgetary tasks would be provisionally performed by the NOJ (‘the incubation period’). That period ended on
1 March
2024, after the contested decision was adopted.
92.      The Parliament considers that the Commission’s assessment of those three reforms was flawed. In relation to legal capacity and financial autonomy of the NJC, it considers that the contested decision was premature. In relation to the new electoral rules for members of the NJC, which were scheduled to take effect only in January 2024, the Parliament similarly considers that the Commission could not adopt the contested decision before the entry into force of those rules. As for the binding opinion on the points system, the Parliament considers that the act does not mean that
the existing points system must be replaced within any specific deadline, meaning that the current system could be retained indefinitely.
93.      The Commission, supported by Hungary, argues that the act on judicial reforms (Act X of 2023), which entered into force before the contested decision was adopted, introduced the necessary reforms, which focused on granting the NJC extended powers over the NOJ. The nine-month incubation period only concerned management and organisational issues, which did not prevent the NJC
from exercising its new powers over the NOJ. The requirements relating to the election of NJC members were only marginal, and in any case, the Commission had no reason to consider that the capacity and independence of the NJC prevented it from exercising the required functions of control over the NOJ. Finally, the Commission does not consider that the fact that it did not require the points system to be changed by a specific deadline constitutes a flaw with respect to the Charter HEC, which is why it did not set that as a requirement in the approval decisions.
(b)    Analysis
94.      The first two complaints by the Parliament relate to the premature nature of the contested decision. In line with my proposal provided in relation to the first part of the first plea, and lacking any reasoning in the contested decision explaining why the Commission did not wait for those reforms to enter into force or to be implemented, I consider that the Court should find that the Commission incorrectly applied the law.
95.      With respect to the binding opinion on the regulation of the points system, I agree with the Commission that the approval decisions did not require immediate reform of that system, but simply provided that the NJC
must be granted the power to give binding opinions in relation to any reform to that system. Given that that aspect of the approval decisions was not challenged after their adoption, I propose that the Court reject this aspect of the second part of the Parliament’s first plea.
96.      Based on the foregoing, I suggest that the Court partly uphold the second part of the first plea
as well
founded.
3.      Third part of the first plea: flawed assessment of the reforms concerning the independence of the Kúria (Supreme Court)
(a)    Main issues and arguments of the parties
97.      In the approval decisions, the Commission found that judicial independence had been particularly undermined as a result of the extensive discretionary powers attributed to the President of the Kúria (Supreme Court) in relation to both the appointment of judges to managerial functions and case allocation. (57) On that basis, Article 3(4) of the approval decisions called for a set of amendments concerning the rules relating to the election of the President of the Kúria (Supreme Court) (58) and the case allocation system of that court. (59)
98.      With respect to the election of the President of the Kúria (Supreme Court), the Parliament asserts that the Commission did not adequately assess, prior to adopting the contested decision, the
potential for the current President of the Kúria (Supreme Court) to be kept in office indefinitely by a decision of a one-third minority of the
Országgyűlés (National Assembly). (60)
99.      With respect to the case allocation system, the Parliament raises four complaints. First, the allocation of cases to chambers without human intervention
was not fully automated under Section 18 of the act on judicial reforms (Act X of 2023), (61) a procedure which had not been implemented prior to the adoption of the contested decision. Moreover, in October 2023, the Commission required Hungary to provide written confirmation from an independent forensic expert or another equivalent profession that the electronically filed cases are given a case number without human intervention. That expert report had not been provided at the time of the contested decision. Second, the Parliament claims that the system lacks transparency because the reports published each week by the Kúria (Supreme Court) on its website contain incomplete data and that court does not envisage publishing the reasons for reassigning cases to another chamber. Where an exception has been applied, the only statement of reasons published was an indication of the legal provision applied in the case. The Parliament further claims that when cases are reassigned due to workload, there is no way to verify whether the original chamber did indeed
have too heavy a workload. Moreover, the case allocation system should, in cases of
derogation, record the decision in the case file and make it available to the parties. However, the Parliament notes that it is unclear whether such records are created at all, or, if they are created, whether they contain sufficient detail so as to enable the parties to assess whether the derogation is in compliance with the general rules. Third, from 1 January 2024, the case allocation rules allowed for new chambers to be set up which are competent to hear election-related cases in the context of the 2024 Parliament and municipal elections. (62) The Parliament alleges that there is no information available on the composition of those chambers. Fourth, the Parliament alleges that, in the approval decisions, the Commission ignored the fact that there may be issues with the case management system in lower-tier courts, as was presented in the 2023 rule of law report. (63)
100. The Commission, supported by Hungary, maintains that the approval decisions do not contain a requirement of earlier removal of the President of the Kúria (Supreme Court), and in any event, his mandate is due to
expire in 2028. Concerning the case allocation system, the Commission submits that Hungary implemented all the requirements set out in the approval decisions, and the absence of any
human intervention was not a requirement for the allocation of cases. Instead, those decisions only required
that the electronically filed cases be numbered
without human intervention. Furthermore, the weekly log files published on that court’s website verify that the electronically filed cases are given a sequential case number in the order in which they arrive and that they are allocated to the chambers in
the same order. Moreover, when a specific derogation is made, the parties are provided with information on the applicable grounds for derogation. In relation
to the workload derogation, the Commission states that the approval decisions required that objective data be available, a requirement which has been provided for since the NJC has been given the power to issue binding opinions on the data sheets and the methods for the assessment of the workload of judges. Moreover, the Commission asserts that it could not have been aware, at the moment of the adoption of the contested decision, of
the possibility of setting up new chambers in the case allocation system, which was made possible only from 1 January 2024. Finally, the Commission acknowledges that certain improvements are necessary in the lower-tier courts, but it did not include that requirement in the approval decisions as it considered it sufficient to concentrate on the proper functioning of the Kúria (Supreme Court), which is the most important element for protecting the financial interests of the European Union in the context of the programmes at issue.
(b)    Analysis
101. According to Section 36(1) of the act on judicial reforms (Act X of 2023), (64) Hungary adopted the amendments which the Commission required in its approval decisions. Those amendments did not call for the removal of the incumbent President of the Kúria (Supreme Court), which the Commission, in any event, cannot demand as that would run counter to the principle of irremovability under EU law. (65) To my mind, the fact that the existing President could stay in office indefinitely provided that the necessary majority in the Országgyűlés (National Assembly)
is not achieved for the purpose of appointing a new President is unduly hypothetical and does not warrant the conclusion that the Commission committed an error of assessment –
by determining that the new legislation satisfied the requirements under the Charter HEC –
which would justify the annulment of the contested decision. That is particularly so, as the approval decisions did not require that the system of the election of the President of the Kúria (Supreme Court) by the Országgyűlés (National Assembly)
be changed.
102. Therefore, I am of the view that the Court should reject that argument of the Parliament.
103. With respect to the automation of case allocation, by introducing Section 18 of the act on judicial reforms (Act X of 2023), (66) Hungary adopted the Commission’s requirement set by the approval decisions. However, before the contested decision was adopted, Hungary did not provide an independent expert report certifying that cases filed electronically do in fact receive a case number without human intervention, a condition
upon which the Commission had insisted. The Commission did not provide any explanation in the contested decision
as to why it did not enforce that requirement. (67)
104. I am therefore of the view that the Court should uphold the Parliament’s claim as founded.
105. With regard to the transparency of the case allocation system, Hungary completed the reforms of the act on judicial reforms (Act X of 2023)
by adopting Decree
18/2023, which had not been applied at the time the Commission adopted the contested decision (as already noted in connection with the first part of the first plea). Therefore, the Commission could not reasonably have concluded that the requirements set in the approval decisions had been fulfilled.
106. Moreover, the Parliament alleges that the new rules on the case allocation scheme became applicable from 1 January 2024, which replaced the rules from December 2023, and they include the setting up of new chambers to hear election-related cases in the context of the Parliament and municipal elections. The Commission claims that it was unaware of the changes, yet its letters exchanged with Hungary reveal that the Commission had been informed of them. It was also aware that the new case allocation system would only take effect with the next amendment to the Kúria (Supreme Court) case allocation system, which
was intended to come into force after the contested decision was adopted. Thus, there are objective indications that the Commission was aware
that the allocation scheme would differ from the one it had requested, but it nonetheless rushed to give a positive assessment without confirming that the proper scheme was being applied or, at the very least, stating why such derogation was acceptable.
107. For that reason, I propose that the Court uphold those two claims
put forward by the Parliament.
108. Finally, given that the Commission did not include any requirements regarding the management of cases in lower-tier courts, Hungary was not obliged to introduce such reforms under the CPR.
109. That claim of the Parliament should, therefore, be rejected.
110. Based on the foregoing, I suggest that the Court partly uphold the third part of the first plea as well
founded.
4.      Fourth part of the first plea: flawed assessment of the reforms relating to judicial appointments
(a)    Main issues and arguments of the parties
111. Article 3(4) of the approval decisions requires, inter alia,
that Hungary remove the possibility for members of the Alkotmánybíróság (Constitutional Court) to be appointed to the Kúria (Supreme Court) without following the normal application procedure.
112. The Parliament criticises
the Commission for not requiring Hungary to remove the possibility for members of the Alkotmánybíróság (Constitutional Court), serving on that court before the judicial reforms introduced by Section 59 of the act on judicial reforms (Act X of 2023), to continue their careers as ordinary judges in appeal courts of their choosing. At the same time, the members of the Alkotmánybíróság (Constitutional Court) appointed after the act on judicial reforms (Act X of 2023)
entered into force cannot be transferred to appeal courts, whereas those who were already serving on that
court before the act’s adoption may be transferred.
113. The Commission, supported by Hungary, asserts that its assessment was focused on the appointment process for the Kúria (Supreme Court) judges, and not on the members of the Alkotmánybíróság (Constitutional Court). It further claims that the possibility for members of the Alkotmánybíróság (Constitutional Court) without previous judicial experience to continue their career at the appeal courts, without having to go through
the ordinary judicial appointment procedure, is not of such a nature that could undermine judicial independence in Hungary.
(b)    Analysis
114. I consider that Hungary has only partially implemented the reform required by the Commission, as the new rules only apply to future members of the Alkotmánybíróság (Constitutional Court), but it does not affect those who are already serving on that court. Hence, the Commission should have ensured that Hungary had fully implemented the requirements that it had set out for that Member State in the approval decisions, which is in my view intended to apply equally to all of the members of the Alkotmánybíróság (Constitutional Court) serving on that court before and after the entry into force of the relevant provision of the act on judicial reforms (Act X of 2023).
115. Accordingly, I am of the view that the Commission failed to apply that requirement imposed on Hungary, for which reason, I propose that the Court uphold the fourth part of the first plea
as well founded.
5.      Fifth part of the first plea: flawed assessment of the reforms concerning preliminary references
(a)    Main issues and arguments of the parties
116. Article 3(2)(c) of the approval decisions requires that
Hungary (under Article 3(2)(c)(i)) amend Section 666 et seq. of the Criminal Procedure Code so as to remove the possibility for the Kúria (Supreme Court)
to review the legality of the decision of a lower-court judge to make a preliminary reference to the Court of Justice, and that it (under Article 3(2)(c)(ii))
amend Section 490 of that code on staying the
proceedings, in order to remove any obstacle inhibiting a court from making a preliminary reference pursuant to Article 267 TFEU.
117. The Parliament claims that the reforms introduced by Sections 63 (68) and 64 (69) of the act on judicial reforms (Act X of 2023)
do not expressly invalidate the precedential Decision Bt.III.838/2019/11 of the Kúria (Supreme Court), which the Court of Justice found to be in breach of EU law, (70) and which could have a chilling effect on judges who consider making references to the Court of Justice for a preliminary ruling. In support of that argument, the Parliament invokes Section 3 of the act amending university laws (Act LXXXV of 2023), which introduced the possibility for the Alkotmánybíróság (Constitutional Court) to provide an opinion to the Court of Justice, within the framework of a preliminary ruling procedure, on matters such as national identity, security and sovereignty. In the Parliament’s view, if read together with the law on the protection of national sovereignty (Law LXXXVIII of 2023), which was adopted during
the same session of the
Országgyűlés (National Assembly), that amendment could be understood as a signal to ordinary judges that questions on those matters are for the Alkotmánybíróság (Constitutional Court) to decide, which may thereby have a chilling effect on judges who consider making references for a preliminary ruling on related issues. In addition, the Parliament claims that the parts of the reform that were intended to remove the obstacles to submitting references for a preliminary ruling – in particular, the part concerning the removal of the statement ‘applicable in
the criminal proceedings’ from Paragraph 490(1) of the Criminal Procedure Code – were not yet applicable on the day that the contested decision was adopted, as they were only introduced by Section 35 of the act amending university laws (Act LXXXV of 2023), which entered into force in 2024.
118. The Commission, supported by Hungary, is of the view that the legislative amendments, which entered into force on 1 June 2023 when Sections 63 and 64 of the act on judicial reforms (Act X of 2023) were adopted, had already removed
any doubt concerning references for a preliminary ruling to which the applicant refers. The Commission also considers that, on the basis of both those legislative reforms and the judgment of the Court of Justice in IS (Illegality of the order for reference), it cannot be argued that Decision Bt.III.838/2019/11 of the Kúria (Supreme Court) would still have a chilling effect on judges. To that end, in order to ensure that no reasonable doubt remained, Hungary adopted Section 35 of the act amending university laws (Act LXXXV of 2023), by which it removed the words ‘applicable in the criminal procedure’ from Paragraph 490(1) of the Criminal Procedure Code. Although that specific amendment entered into force after the contested decision, the Commission believes that the main obstacles to preliminary references introduced by the precedential decision of the Kúria (Supreme Court)
had
already been removed by Sections 63 and 64 of the act on judicial reforms (Act X of 2023), which the Parliament did not challenge. As far as the belated removal by Section 35 of the act amending university laws (Act LXXXV of 2023)
of the possibly misleading wording in the Criminal Procedure Code is concerned, the Commission explains that it was already clear from the explanatory memorandum to that code that any question can be referred to the Court of Justice. (71) Lastly, the Commission maintains that the Parliament failed to demonstrate how national judges are prevented from making a reference to the Court of Justice for a preliminary ruling by the legislative amendment enabling the Alkotmánybíróság (Constitutional Court) to provide an interpretative opinion to the Court of Justice.
(b)    Analysis
119. It is my understanding that
Section 63 of the act on judicial reforms (Act X of 2023) did not fully remove the obstacles concerning references for a preliminary ruling, which is why Hungary subsequently adopted Section 35 of the act amending university laws (Act LXXXV of 2023), by which it deleted the words ‘applicable in
the criminal proceedings’. Therefore, the Parliament is correct in stating that the necessary legislative reform had not been in place at the time the contested decision was adopted. The Commission’s explanation that its main concerns regarding preliminary rulings had already been addressed through other reforms undertaken by Hungary, and that the enactment of Section 35 – which had not entered into force at the time that the Commission adopted the contested decision – was simply an additional correction of the potentially misleading wording from the Criminal Procedure Code could, in principle, be accepted. However, in the contested decision, the Commission did not provide any reasoning as to why it did not wait for the act amending university laws (Act LXXXV of 2023) to enter into force before adopting the contested decision.
120. For that reason, I find the Parliament’s claim to be well
founded.
121. Furthermore, by adopting Section 3 of the act amending university laws (Act LXXXV of 2023), Hungary established the possibility for the
Alkotmánybíróság (Constitutional Court) to issue an opinion on matters of national sovereignty when such a question arises in the context of a reference to the Court of Justice for a preliminary ruling. The Commission was aware of that amendment, which entered into force on 14 December 2023, hence the day after the contested decision was adopted. The intention of and the manner in which that newly provided competence of the Constitutional Court to issue opinions on matters related to national sovereignty will be applied was not objectively clear when the contested decision was taken, nor is it clear today. In that light, as stated by the Parliament, such a provision may indeed have a chilling effect on national judges and may deter them from making a reference to the Court of Justice for a preliminary ruling when they find that such a reference would be necessary in order to resolve disputes that involve the application of EU law.
122. Therefore, the Commission could not have issued a positive assessment of Hungary’s legislative reform without establishing the real effect of that new rule.
123. Based on the foregoing, I suggest that the Court uphold the fifth part of the first plea
as well founded.
6.      Sixth part of the first plea: relevant elements were not taken into account in the Commission’s assessment
(a)    Main issues and arguments of the parties
124. The Parliament claims that the Commission limited its assessment only to the list of conditions established in the approval decisions without considering other significant developments that occurred between the adoption of the approval decisions and the contested decision. In particular, the Parliament asserts that there is no evidence that the Commission considered Hungary’s
law on the protection of national sovereignty (Law LXXXVIII of 2023), (72) which in its view encroaches on the constitutional competences of State institutions, including the courts, by creating an Office for the protection of national sovereignty (‘the Office’)
(73) with broad powers to investigate any activity it deems contrary to national sovereignty. Section 8(2) of that law classifies the Office’s investigations as non‑administrative, with the result that they cannot be challenged before an administrative court.
In addition, its conclusions or reports are not subject to any judicial review. Consequently, the Parliament argues that the Commission should have secured assurances before issuing its positive assessment. Furthermore, the Parliament alleges that the Commission’s assessment did not take into account concerns raised within the framework of the European Semester and the 2023 Rule of Law Mechanism, which post-dated the approval decisions. Finally, the Parliament further alleges that that assessment also ignored the fact that the judicial reforms were undertaken without adequate stakeholder consultations.
125. The Commission, supported by Hungary, submits that the issues raised by the Parliament are not relevant as they do not lead to the conclusion that the adopted amendments do not provide the necessary guarantees for ensuring compliance with the Charter in the implementation of Union funds. Moreover, the Commission asserts that the Parliament did not demonstrate that the law on the protection of national sovereignty (Law LXXXVIII of 2023)
has any connection with judicial independence in Hungary. Next, in the Commission’s view, the Parliament failed to
identify the new deficiencies raised within the framework of the European Semester and the 2023 Rule of Law Mechanism, and it did not explain how they could be considered systemic and sufficiently serious to conclude that the Charter HEC has
not been fulfilled. Finally, for the Commission, the fact that the judicial reforms were undertaken without adequate stakeholder consultations could not legally justify an assessment that the Charter HEC is unfulfilled.
126. The Hungarian Government submits in its intervention that the approval decisions did not require stakeholder consultations, which is why Hungary did not provide any proof of such consultations in its self-assessment. Nonetheless, the draft of the act on judicial reforms (Act X of 2023) was put forward
for social consultation between 18 January and 3 February 2023, and Hungary had notified the Commission of the written opinions received and conducted oral consultations with representatives of organisations including civil societies.
(b)    Analysis
127. The Commission was aware, in 2023, of the adoption of the law on the protection of national sovereignty (Law LXXXVIII of 2023), as confirmed at the hearing. (74) However, the Commission claims that it had no evidence, when adopting the contested decision, that that law was capable of undermining the effectiveness of the mechanisms designed to ensure compliance with the Charter in Hungary. The
contested decision provides no evidence that the Commission took that law into account, nor does it explain how it concluded that those legislative developments do not undermine or offset the objectives of the reforms Hungary undertook after the approval decisions.
128. In my view, the Commission was
required, at least, to
request an explanation from Hungary in order to assure itself of the possible consequences of that law. As already stated above (see point 75 of the present Opinion), the Commission cannot ignore developments that might influence the goals of the reforms that it imposed in the approval decisions. Thus, even if no new conditions may be imposed, the Commission had to make sure that Hungary did not introduce other legislation which could diminish the effects of the reforms undertaken in order to fulfil the conditions set in the approval decisions.
129. Therefore, I propose that the Court uphold this claim raised by the Parliament.
130. Concerning the Parliament’s allegation that the Commission’s assessment overlooked issues raised within the European Semester and the 2023 Rule of Law Mechanism, I share the Commission’s view that the Parliament has not identified precisely which points were allegedly overlooked (concerns raised in relation to the mechanism of allocation of cases in the lower-tier courts have already been discussed in point 97 of the present Opinion).
131. Concerning the stakeholder consultations, it is correct that the Commission did not include that requirement in the approval decisions. (75) At the same time, in its intervention, Hungary states that it carried out the required stakeholder consultation for the act on judicial reforms (Act
X of 2023) in accordance with the RRP. Neither the Commission nor the Parliament challenged that claim.
132. Based on the foregoing, I suggest that the Court partially uphold the sixth part of the first plea, only with respect to the protection of national sovereignty (Law LXXXVIII of 2023).
C.      The second plea in law: infringement by the Commission of the duty to state reasons
1.      Main issues and arguments of the parties
133. By its second plea in law, the Parliament alleges that the Commission infringed the duty to state reasons, as laid down in Article 296 TFEU,
on the ground that the contested decision merely lists the amendments that Hungary adopted and provides no substantive explanations that would allow the reader to understand the reasons underlying its positive assessment. Moreover, the Parliament claims that the responsible use of the EU budget is based on the principle of mutual trust between Member States, which is undermined when the Commission releases funds without providing adequate reasoning to reassure other EU institutions, Member States and EU citizens.
134. The Commission, supported by Hungary, asserts that the Parliament failed to apply the appropriate legal standard and did not properly consider the case‑law on the duty to state reasons. According to that case-law, the requirement to state reasons must be appraised with reference to the circumstances of each case
as the reasoning must disclose in a clear and unequivocal manner the reasons for adopting the contested decision or measure at issue. (76) However,
where the
party concerned has been closely involved in the process by which that contested decision came about,
and is therefore aware of the reasons for which the institution adopted it, the extent of the obligation to state reasons is
significantly reduced. (77) In that respect, the Commission explains that the contested decision constitutes its reply to Hungary concerning justifications with respect to the legislative reforms introduced on the basis of the approval decisions. Hence, when a decision is preceded by an extensive dialogue with the person who is legally concerned by it, it is sufficient that such a decision sets out the main points of fact and of law relevant for making a positive assessment. Moreover, only when it disagrees with the Member State’s assessment of the compliance of its adopted measures with the enabling conditions
is the Commission obliged to set out its assessment in accordance with the second subparagraph
of Article 15(4) of the CPR.
2.      Analysis
135. What kind of reasoning is the Commission obliged to provide in a decision by which it lifts the suspension of payment from the budget for which it previously imposed certain conditions, and to whom should that decision be addressed?
136. One of the functions of the obligation to state reasons under Article 296 TFEU is to enable judicial review. In the well-established case-law, the Court
clarified that ‘the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court having jurisdiction to exercise its power of review’. (78)
137. It follows that, in addition to enabling the Court to perform the review, the reasoning must also enable the potential applicants to decide whether to bring the case before the Court in the first place.
138. The Commission bases its defence solely on the fact that Hungary has sufficient reasoning to understand the decision. However, the reasoning should, even if it is not necessary to go into detail, also satisfy the interests that other subjects could have in that decision, even if they are not its addressees.
That is especially so in the present case with regard to the justification as to why the yet unfulfilled requirements did not prevent the Commission from deciding to release the funds from the EU budget.
139. The contested decision merely enumerated the requirements imposed by the approval decisions and listed the Hungarian reforms adopted to fulfil those requirements, but it did not mention either the requirements that were not fulfilled at the time when the decision was adopted, or any intervening developments. The Commission, therefore, did not at all explain why the unfulfilled requirements were no longer understood to be an obstacle to the release of the funds from the EU budget. Thus, that part of the reasoning was not only insufficient so as to enable any challenge as to its substantive acceptability, but it was in fact non-existent and thus in breach of Article 296 TFEU.
140. In that light, I am of the view that part of the required Commission’s reasoning was not provided at all in the contested decision, and I propose that the Court uphold the Parliament’s second plea in law.
D.      The third plea in law: the Commission misused its powers
1.      Main issues and arguments of the parties
141. The Parliament alleges that, although it could not examine the correspondence between the Commission and Hungary from 11
to
13 December 2023, the available indicia show that the Commission misused its powers when it gave a positive assessment of the Charter
HEC. The Parliament contends that such a favourable assessment was given in exchange for the Hungarian Prime Minister’s decision to leave the room, thereby allowing the remaining members of the European
Council to decide on opening accession negotiations with Ukraine on 14 and 15 December 2023. Supporting evidence includes the Prime Minister’s repeated linking of Ukrainian funding to the blocking of EU funds for Hungary, social media posts showing him exiting during the vote, statements from a Commission member, the decision being drafted solely in English and the payment to Hungary on
27 December
2023 –
a day on which the Commission does
not work. Finally, the Parliament argues that the Commission had no obligation to deliver its assessment by that date and that the contested decision fails to explain why it did not wait for the required reforms to become applicable.
142. The Commission, supported by Hungary, argues that the Parliament has not shown that the contested decision deviates from the objectives that
justify
the Commission’s powers. It further maintains that it had to respect a three-month deadline that began on
18 July
2023, which was suspended twice and only resumed after Hungary submitted clarifications; consequently, the deadline elapsed before the end of the year. The fact that the decision was adopted 10 working days before that deadline does not, in the Commission’s view, indicate a rushed procedure, because the file had been examined for nearly 5 months, which is well beyond the 3-month time limit and goes beyond the remit of Article 15(4) of the CPR, which requires a position to be taken
‘as soon as possible and no later than 3 months’ after receipt of the Member State self‑assessment. Accordingly, the Commission maintains
that it complied with Article 15(4) of the CPR. Finally, the internal decision empowering a director‑general to send
the letter was taken in a written procedure, drafted solely in English in accordance with the authorisation of the President of the Commission under the Commission’s Rules of Procedure, and the annexed letter was subsequently translated into Hungarian.
2.      Analysis
143. In the case-law, the Court has consistently held that ‘a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case’. (79)
144. The fact that the funds were released when all concrete requirements were not yet fulfilled – thus prematurely – and that this has happened without any explanation may lead a reasonable person to
question the real motivation behind the contested decision. However, assumptions or ‘indicia’, as the Parliament calls them,
that the EU funds were, in fact, released to Hungary in exchange for political favours, are mainly based on social media posts, interviews and newspaper
reports. Those are, in my view, insufficient to prove that the Commission adopted the contested decision with the exclusive or primary purpose of achieving an objective other than establishing that Hungary had implemented the required legislative reforms concerning judicial independence – the very condition that would qualify it to receive the disbursement of the CPR funds.
145. Therefore, considering that the claims alleging misuse of powers are made subject to strict requirements
by the Court with respect to proof, (80) I propose that the Court reject the third plea in law as unfounded.
VI.    Costs
146. 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.
147. Since the Parliament has applied for costs to be awarded against the Commission, and the latter has been unsuccessful, the Commission must be ordered to pay the costs incurred by the
Parliament.
148. In accordance with Article 140(1) of those rules, Hungary, as an intervener, must bear its own costs.
VII. Conclusion
149. In the light of the foregoing considerations, I propose that the Court of Justice:
–        annul Commission Decision C(2023) 9014 of 13 December 2023 on the approval and signature of the Commission assessment, in accordance with Article 15(4) of Regulation (EU) 2021/1060, of the fulfilment of the horizontal enabling condition ‘3. Effective application and implementation of the Charter of Fundamental Rights’ with regard to the deficiencies in judicial independence in Hungary;
–        order the European Commission to bear its own costs and to pay those incurred by the European Parliament;
–        order Hungary to bear its own costs.
1      Original language: English.
2      Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy (OJ 2021 L 231, p. 159).
3      Commission Decision of 13 December 2023 on the approval and signature of the Commission assessment, in accordance with Article 15(4) of Regulation (EU) 2021/1060, of the fulfilment of the horizontal enabling condition ‘3. Effective application and implementation of the Charter of Fundamental Rights’ with regard to the deficiencies in judicial independence in Hungary, Brussels, 13 December 2023 (not published).
4      For a clear overview and explanation of different EU financing instruments, see de Witte, B., ‘Integration through funding? The Union’s finances as policy instrument’, in Weber, R., (ed.), The Financial Constitution of European Integration – Follow the Money?, Hart Publishing, Oxford, 2023, pp. 221 to 236.
5      Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ 2020 L 433I, p. 1; ‘the Conditionality Regulation’).
6      See Article 1 of the Conditionality Regulation.
7      See, in that respect, Article 4(2)(d) and recitals 8, 9, and 10 of the Conditionality Regulation. See also judgments of 16 February 2022, Hungary v Parliament and Council
(C‑156/21, EU:C:2022:97), and of 16 February 2022, Poland v Parliament and Council
(C‑157/21, EU:C:2022:98).
8      See Article 15 of and Annex III to the CPR. The relevant part of the Charter HEC expressed in Annex III reads: ‘Effective mechanisms are in place to ensure compliance with the Charter of Fundamental Rights of the European Union (“the Charter”) which include: 1. Arrangements to ensure compliance of the programmes supported by the Funds and their implementation with the relevant provisions of the Charter. …’
9      Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility (OJ 2021
L 57, p. 17).
10      See point 4 of Article 2 of the RRF Regulation.
11      The NGEU is a temporary financial programme – launched as a reaction to the economic impact of the COVID-19 pandemic – worth EUR 750 billion, for the financing of which the European Union raised money on the financial markets. However, even though it is presented as an emergency response to the COVID-19 pandemic, the NGEU is, in fact, a plan which fosters structural transformation for Member States’ economies, with special emphasis on the green and digital transitions. See van Middelaar, L., ‘Investment politics: A new capacity to project Union action into the future?’, in Weber, R., (ed.), The Financial Constitution of European Integration – Follow the Money?, Hart Publishing, Oxford, 2023, pp. 237 to 257; see, in particular, p. 251.
12      The procedure under the RRF Regulation requires a Member State first to prepare a national recovery and resilience plan (RRP), which responds to ‘the relevant country-specific challenges and priorities’ identified in the framework of the European Semester and other mechanisms (see Articles 17 and 18 of the RRF Regulation). The Commission then examines the plan, in close cooperation with the Member State concerned,
and proposes the RRP together with the proposed targets and milestones for approval by the Council of the European Union (see Articles 19 and 20 of the RRF Regulation). The Commission submitted the proposal relating to Hungary on 30 November 2022, and the Council approved the Hungarian RRP, which contained 111 milestones and targets, on 5 December 2022. See Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Hungary, 15447/22, adopted on 5 December 2022
(‘the Council Implementing Decision on Hungary’s RRP’), available at https://data.consilium.europa.eu/doc/document/ST‑15447-2022-INIT/en/pdf. On 7 December 2023, the Council, following the proposal made by the Commission, adopted amendments to that implementing decision in order to include a request for additional financing under the REPowerEU, established in the meantime (available at: https://data.consilium.europa.eu/doc/document/ST‑15964-2023-REV-1/en/pdf).
13      See super milestones 213 to
216 in the annex to the Council Implementing Decision on Hungary’s RRP.
14      As I will explain in more detail below (see points 16 to 28 of the present Opinion), under the CPR those requirements became part of the approval decisions (see footnote 31
to the present Opinion), by which the Commission, on 22 December 2022, approved 10 programmes proposed by Hungary and at the same time suspended the payment until the enabling conditions had been fulfilled.
15      See the Commission’s press release, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7273.
16      At the hearing, the Commission explained that Hungary did not request any payments from the RRF, despite the fact that a request for payment is a prerequisite for any disbursement under that facility.
17      The Commission explains that it reverts to the measures under that regulation only when such measures are more effective. See, in that respect, Communication from the Commission –
Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092 on a general regime of conditionality for the protection of the Union budget ((2022/C 132/02, p. 12), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52022XC0318(02).
18      See Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary (OJ 2022 L 325, p. 94).
19      See proposal for a Council implementing decision on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary (COM/2022/485 final), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52022PC0485. The first notification from the Commission under the Conditionality Regulation was sent to Hungary on 27 April 2022, which represented the beginning of the assessment process with Hungary.
20      See recitals 11 and 12 of Council Implementing Decision 2022/2506.
21      That suspension amounted to approximately EUR 6.3 billion.
22      Those programmes are the Environmental and Energy Efficiency Operational Programme Plus, the Integrated Transport Operational Programme Plus, and the Territorial and Settlement Development Operational Programme Plus. They are financed through the funds covered by the CPR.
23      By the same decision, the Council prohibited the Commission from entering into new legal commitments with the public interest trusts and entities maintained by them for EU funding implemented under direct or indirect management. In Hungary, those public interest trusts control 21 Hungarian public institutions. Their boards have the power to define the strategy, budget, HR policy, organisational structure and institutions, and can select executive officers, such as those at in senior academic and administrative management positions.
24      See the Commission Decision of 13 December 2023 on the reassessment, on the Commission’s initiative, of the fulfilment of the conditions under Article 4 of Regulation (EU, Euratom) 2020/2092 following Council Implementing Decision (EU) 2022/2506 of 15 December 2022 regarding Hungary (C(2023) 8999 final), available at: https://commission.europa.eu/system/files/2023-12/C_2023_8999_1_EN_ACT.pdf.
25      It is worth noting that, in the meantime, Hungary notified the Commission of the amendments it undertook in relation to public interest asset management foundations performing public duty, and requested that the Commission propose to the Council that
the measures under the Conditionality Regulation be adapted or lifted, but only concerning public interest trusts.
Following the Commission’s decision denying the sufficiency of the reforms at issue, on 26 February
2025 Hungary filed an action for annulment
of that decision, which is currently pending before the General Court in Case T‑138/25, Hungary v Commission.
26      See Articles 21 to 23 of the CPR.
27      Applicable at the time of the contested decision was Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’).
28      See the second sentence of Article 15(2) of the CPR (emphasis added).
29      Such self-assessment was reported in relation to all 10 programmes applied for. See, for example, recital 5 of the “Environmental and Energy Efficiency Operational Programme Plus”
for support from the European Regional Development Fund, the Cohesion Fund and the Just Transition Fund under the Investment for jobs and growth goal in Hungary.
30      Those decisions are: Decision C(2022) 10004 approving the programme “Environmental and Energy Efficiency Operational Programme Plus”
for support from the European Regional Development Fund, the Cohesion Fund and the Just Transition Fund under the Investment for jobs and growth goal in Hungary; Decision C(2022) 10007 approving the programme “Digital Renewal Operational Programme Plus”
for support from the European Regional Development Fund and the European Social Fund Plus under the Investment for jobs and growth goal in Hungary; Decision C(2022) 10008 approving the programme
“Territorial and Settlement Development Operational Programme Plus”
for support from the European Regional Development Fund and the European Social Fund Plus under the Investment for jobs and growth goal in Hungary; Decision C(2022) 10009 approving the programme
“Economic Development and Innovation Operational Programme Plus”
for support from the European Regional Development Fund and the European Social Fund Plus under the Investment for jobs and growth goal in Hungary; Decision C(2022) 10010 approving the programme “Human Resources Development Operational Programme Plus”
for support from the European Regional Development Fund and the European Social Fund Plus under the Investment for jobs and growth goal in Hungary; Decision C(2022) 10011 approving the programme
“Integrated Transport Development Operational Programme Plus”
for support from the European Regional Development Fund and the Cohesion Fund under the Investment for jobs and growth goal in Hungary; Decision C(2022) 10018 approving the programme “Hungarian Fisheries Programme Plus (HFP Plus)”
for support from the European Maritime, Fisheries and Aquaculture Fund in Hungary; Decision C(2022) 10019 approving the Programme of Hungary for support from the Internal Security Fund for the period from 2021 to 2027; Decision C(2022) 10020 approving the programme of Hungary for support from the Instrument for Financial support for Border Management and Visa Policy for the period from 2021 to 2027; and Decision C(2022) 10022 approving the programme of Hungary for support from the Asylum, Migration and Integration Fund for the period from 2021 to 2027 (‘the approval decisions’).
31      See, for example, recital 8 of the implementing decision approving the
‘Environmental and Energy Efficiency Operational Programme Plus.’.
32      See Articles 1 and 2 of each of the approval decisions.
33      Article 3(2) is identical in all 10 approval decisions. Emphasis added.
34      I will come back to those particular requirements, which were allegedly not fulfilled, when assessing specific parts of the Parliament’s first plea in law (see Section V, Subsection B of the present Opinion).
35      Emphasis added.
36      Egyes igazságügyi tárgyú törvényeknek a magyar helyreállítási és ellenállóképességi tervhez kapcsolódó módosításáról szóló 2023. évi X. törvény (Act X of 2023 amending certain laws on judicial matters in connection with the recovery and resilience plan for Hungary; ‘the act on judicial reforms (Act X of 2023)’).
37      Az igazságügyi alkalmazottak szolgálati jogviszonyáról szóló 1997. évi LXVIII. Törvény (Act LXVIII of 1997 on the service relationship of judicial staff; ‘the act relating to judicial staff (Act LXVIII of 1997)’).
38      Az Alkotmánybíróságról szóló 2011. évi CLI. Törvény (Act CLI of 2011 on the Constitutional Court; ‘the act on the Constitutional Court (Act CLI of 2011)’).
39      A
bíróságok szervezetésről és igazgatásáról szóló 2011. évi CLXI. törvény (Act CLXI of 2011 on the organisation and administration of courts; ‘the act on the organisation of courts (Act CLXI of 2011)’).
40      A
bírák jogállásáról és javadalmazásáról szóló 2011. évi CLXII. törvény (Act CLXII of 2011 on the status and remuneration of judges; ‘the act relating to the status of judges (Act CLXII of 2011)’).
41      A
büntetőeljárásról szóló 2017. évi XC. törvény (Act XC of 2017 on Criminal Procedure; ‘the act on criminal procedure (Act XC of 2017)’).
42      18/2023. (XII. 7.) IM rendelet a bírósági ügyvitel szabályairól szóló 14/2002. (VIII. 1) (Decree 18/2023 of the Minister of Justice of 7 December 2023 on the amendment of the decree on judicial case management; ‘the Decree 18/2023’).
43      Az egyetemek és a kutatóintézetek, valamint a gazdaság összekapcsoltságának erősítéséhez szükséges egyes törvények, továbbá egyes felnőttképzési és kulturális tárgyú törvények módosításáról szóló 2023. évi LXXXV. törvény (Act LXXXV of 2023 amending certain laws necessary to strengthen the interconnectedness of universities and research institutes and the economy, as well as certain laws on adult education and culture; ‘the act amending university laws (Act LXXXV of 2023)’).
44      A
nemzeti szuverenitás védelméről szóló 2023. évi LXXXVIII. törvény (Law LXXXVIII of 2023 on the protection of national sovereignty; ‘the law on the protection of national sovereignty (Law LXXXVIII of 2023)’).
45      In the present Opinion, I use the term ‘contested decision’ to denote both the decision itself and the assessment letter accompanying that decision.
46      Thus, on 18 July 2023, Hungary first informed the Commission of its positive self-assessment with regard to the fulfilment of the Charter HEC in respect of judicial independence. As the Commission was unable to conclude whether the legislative amendments put in place by Hungary addressed all the conditions specified in the approval decisions, on 26 September 2023 the Commission requested clarification from Hungary. On 19 October 2023, Hungary replied and provided additional explanations. On 1 November 2023, the Commission requested further clarification to which Hungary replied by letters dating from 11,
12 and 13 December 2023.
47      Those include the programme for support from the Internal Security Fund, as set out in Implementing Decision C(2022)
10019; the programme for support from the Instrument for Financial support for Border Management and Visa Policy, as set out in Implementing Decision C(2022)
10020; the Territorial and Settlement Development Operational Programme Plus, as set out in Implementing Decision C(2022)
10008; the Integrated Transport Development Operational Programme Plus, as set out in Implementing Decision C(2022)
10011; the Environmental and Energy Efficiency Operational Programme Plus, as set out in Implementing Decision C(2022)
10004; and the Hungarian Fisheries Programme Plus, as set out in Implementing Decision C(2022)
10018.
48      Those are: the Programme for Support from the Asylum, Migration and Integration Fund, as set out in Implementing Decision C(2022)
10022; the Human Resources Development Operational Programme Plus, as set out in Implementing Decision C(2022)
10010, as corrected by Commission Implementing Decision (2023)
1483 of 8 March 2023; the Digital Renewal Operational Programme Plus, as set out in Implementing Decision C(2022)
10007; and the Economic Development and Innovation Operational Programme Plus, as set out in Implementing Decision C(2022)
10009.
49      See the Commission Press Release, Commission considers that Hungary’s judicial reform addressed deficiencies in judicial independence, but maintains measures on budget conditionality, 13 December 2023, available at: https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_23_6465/IP_23_6465_EN.pdf.
50      Although the Parliament did characterise the Commission’s errors as being manifest, at the hearing it explained that it merely wished to imply that the mistakes were obvious, rather than suggesting that it is the standard that the Court should use when reviewing the legality of the decision.
51      As the Court explained in two ‘Conditionality judgments’, the rule of law requirements as part of the budgetary conditionality allow the EU institutions to examine situations in Member States only in so far as they are relevant to the sound financial management of the Union budget or the protection of the financial interests of the Union. See judgments of 16 February 2022, Hungary v Parliament and Council
(C‑156/21, EU:C:2022:97, paragraphs 144 and 145), and of 16 February 2022, Poland v Parliament and Council
(C‑157/21, EU:C:2022:98, paragraphs 162 and 163).
52      Although that wording may not properly reflect the substance of all the Parliament’s pleas, I will keep that terminology in order to maintain the connection with each part of the Parliament’s first plea. However, the claim relating to the ‘flawed assessment’ in the second, third, fourth and fifth part of the Parliament’s first plea must, in relation to some of the claims, be read not as relating to the erroneous establishment of facts, but rather as incorrect application of law.
53      I cannot but observe that the present case has revealed that many steps relating to the use of the EU funds and the implementation of different forms of conditionality in that respect are
not sufficiently transparent. That is at odds with the principle of democracy as it makes it difficult for EU citizens to understand how and why many of the budgetary decisions are taken.
54      See, for instance, Article 3 of Implementing Decision C(2022)
10004
approving the Environmental and Energy Efficiency Operational Programme Plus.
55      See recital 9 of the approval decisions.
56      Amending Subtitle 63 of the act on the organisation of courts (Act CLXI of 2011).
57      See recitals 10 and 11 of the approval decisions.
58      In particular, the candidates for that position must have at least five years of experience as a judge, he or she cannot be re-elected, and the NJC is to give a binding opinion on the suitability of the candidate for that position.
59      In particular, the case numbers have to be
attributed without human intervention, cases should be allocated to chambers following pre-established and objective criteria, the bench hearing the case must be composed following an algorithm prescribed in advance, the parties to the proceedings should be able to verify on the basis of the case file whether the rules on case allocation have been duly applied, and the judicial council of the Kúria (Supreme Court) and the Kollegium (departments of judges) should be able to give a binding opinion on the case allocation scheme.
60      As pointed out in the Commission’s 2023 Rule of law report – Country chapter on the rule of law situation in Hungary, 2023, p. 7 (‘the 2023 rule of law report’): ‘A blocking minority in Parliament can prevent the election of a new president, thereby keeping the incumbent in office for an undetermined period of time.’
61      Amending Section 10(4)(c) of the act on the organisation of courts (Act CLXI of 2011).
62      Provision VI.4 of the case allocation scheme provides that the head of the administrative department may, by special order, assign election-related cases to three-member chambers VIII, IX, X, and XI, if more than 15 electoral cases are brought before the Kúria within a period of three calendar days. The four chambers VIII, IX, X and XI, are new chambers, specially introduced only for electoral disputes, and apart from that, they do not function, which is why those specific chambers are referred to as ‘phantom’ chambers. Without those amendments, the electoral disputes would be decided by the existing three member chambers.
63      See the 2023 rule of law report, p. 6.
64      Amending Section 114(1) of the act on the organisation of courts (Act CLXI of 2011).
65      See, judgments of 5 November 2019, Commission v Poland (Independence of ordinary courts)
(C‑192/18, EU:C:2019:924, paragraph 115), and of 7 May 2024, NADA and Others
(C‑115/22, EU:C:2024:384, paragraphs 43 and 44).
66      Amending Section 10(4) of the act on the organisation of courts (Act CLXI of 2011). It provides that ‘the numbers which cases received by way of electronic means shall be assigned by automated process, without human intervention’.
67      In its letter to the Commission dated
11 December 2023, Hungary specified that, based on a suggestion made by
the Commission during bilateral meetings held on 2 November 2023, Hungary undertook to provide the Commission with an independent audit report by 30 June 2024.
68      Section 63(1) of the act on judicial reforms
(Act X of 2023) provides that ‘a court may initiate, ex officio or upon a motion, a preliminary ruling procedure before the Court of Justice … pursuant to the rules of the Treaties on which the European Union is founded where it deems it necessary with respect to any legal act or legislation of the European Union applicable to the criminal proceedings’.
69      Section 64 of the act on judicial reforms (Act X of 2023) provides that ‘no appeal may be lodged against any order issued pursuant to Section 490’.
70      See judgment of 23 November 2021, IS (Illegality of the order for reference)
(C‑564/19, EU:C:2021:949; ‘IS (Illegality of the order for reference)’).
71      The explanatory memorandum for Section 63 of the act on judicial reforms (Act X of 2023) provides that
‘no decision may be taken to review the legality of a decision to refer a question to the Court of Justice of the European Union for a preliminary ruling’ and ‘that the right of Hungarian judges to refer questions to the Court … for a preliminary ruling under the EU Treaties is not limited by national instruments’.
72      That law was adopted on 12 December 2023 during the same session of the Országgyűlés (National Assembly) in which Section 35 of the act amending university laws (Act LXXXV of 2023) was adopted.
73      Szuverenitásvédelmi Hivatal (Office for the protection of national sovereignty).
74      It should also be taken into consideration that the Commission brought infringement proceedings in respect of
the Law on Sovereignty on before the Court of Justice. See the pending Case C‑829/24, Commission v Hungary. See also Opinion of Advocate General Kokott in Case C-829/24, Commission v Hungary, read on the same day as the present Opinion.
75      Such consultations were, nevertheless, required under four identically worded milestones under the RRF Regulation.
76      The Commission relied on the
judgments of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraphs 146 to 148 and the case-law cited), and of 11 July 2013, Ziegler v Commission, (C‑439/11 P, EU:C:2013:513, paragraphs 114 and 115).
77      The Commission relied on the judgments
of 11 December 1980, Acciaierie e Ferriere Lucchini v Commission
(1252/79, EU:C:1980:288, paragraph 14); of 14 January 1981, Germany v Commission
(819/79, EU:C:1981:2, paragraphs 19 to 21); of 14 November 1989, Italy v Commission
(14/88, EU:C:1989:421, paragraph 11); of 2 April 1998, Commission v
Sytraval and Brink’s France
(C‑367/95 P, EU:C:1998:154, paragraph 63); of 22 March 2001, France v Commission
(C‑17/99, EU:C:2001:178, paragraph 35); of 10 September 2015, Fliesen-Zentrum Deutschland (C‑687/13, EU:C:2015:573, paragraphs 75 and 76);
and of 27 September 2012, Applied Microengineering v Commission, T‑387/09, EU:T:2012:501, paragraph 67).
78      See, ex multis, judgment of 11 July 2013, Ziegler v Commission (C 439/11 P, EU:C:2013:513, paragraph 115 and the case-law cited) or judgment of 23 January 2025, Neos v Ryanair and Commission (C‑490/23 P, EU:C:2025:32, paragraph 34 and the case-law cited) (emphasis added).
79      See judgment of 8 December 2020, Hungary v Parliament and Council  (C‑620/18, EU:C:2020:1001, paragraph 82 and the case-law cited).
80      See Lenaerts, K., Gutman, K. and Nowak, J.T.,
EU Procedural Law, Oxford University Press, 2023, points 7.191 to 7.194.