Advocate Normal’s Opinion in CJEU Case C-769/22 “Fee v. Hungary” – Official Weblog of UNIO – Cyber Tech

Gonçalo Martins de Matos (Grasp in Judiciary Legislation by the College of Minho | Member of the Editorial Help of this weblog)

There’s a very related case concerning the defence of elementary rights being processed on the Court docket of Justice of the European Union (CJEU): an infringement process moved towards Hungary by the European Fee on the grounds of breaching Article 2 of the Treaty on European Union (TEU). It’s a related case as a result of it’s the first case to border abuses of elementary rights by Hungarian authorities as an overarching systemic downside, as a substitute of the standard sectorial and solitary breaches. This case would possibly open up the infringement process to a helpful function of a elementary rights safety mechanism,[1] because it has been defended by authorized students and practitioners. And that function is essential within the context of rule of regulation backsliding and up to date democratic erosion.

Elementary rights are of elementary significance within the European Union (EU)’s authorized order. As a matter of reality, the EU is axiologically primarily based on a set of values ​​frequent to its Member States, particularly respect for human dignity, freedom, democracy, equality, the rule of regulation and respect for human rights, enshrined in Article 2 TEU and self-imposed as an goal of the Union itself, in accordance with Article 3(1) TEU. It’s this conception of the EU as a group of values ​​that contributes to the development of the “society wherein pluralism, non-discrimination, tolerance, justice, solidarity and equality between ladies and men prevail” referred to within the second a part of Article 2 TEU. Greater than a group of values, the EU creates regulation to which its authorized and institutional framework, its Member States and its residents are sure, ensuing within the notion that the Union submits to the rules that itself created. From this notion we conclude that the EU conceives itself as a Union subjected to the Legislation, wherein the train of European public energy is linked to EU regulation. We’re in presence of the precept of the rule of regulation translated into the logic of the EU: the precept of the Union of Legislation, which features as a restrict to the actions of European establishments and a assure of the rights of people attributed by European provisions.

Being a Union of Legislation, the EU establishes a precept of legality, wherein all authorized relationships established throughout the framework of the Union fall below the management of unbiased judicial our bodies. Moreover, by recognising that the Treaties additionally established an entire system of treatments and procedures designed to entrust the CJEU with the evaluation of the legality of the acts of the establishments, the EU additionally ensures the assure of efficient judicial safety. The precept of efficient judicial safety implies that the European authorized order gives means to guard the elemental rights assured by it. Though not particularly created to pursue that purpose, the motion for infringement is a jurisdictional process that goals at assessing the compliance of a Member State’s behaviour with EU regulation. Offered in Articles 258 to 260 of the Treaty on the Functioning of the European Union (TFEU), its operate is to, concurrently, assess Member States’ behaviour concerning the fulfilment of the obligations deriving from the Union regulation, in addition to the proper interpretation of that very same regulation.

Within the context of the so-called “rule of regulation backsliding”,[2] a course of outlined by the gradual seize of the authorized and political programs of the respective States by a celebration in energy, and which has affected some EU Member States, there have been some setbacks in areas that beforehand appeared protected, such because the rule of regulation or elementary rights. The response of the European establishments has not been essentially the most expeditious or peremptory, primarily as a result of the Fee’s reactions to rule of regulation backsliding in, v.g., Hungary or Poland have been weak, if not futile, with even the infringement actions bringing about pyrrhic victories, as they discovered that these States had didn’t adjust to particular EU guidelines, however ignored the broader systemic downside. This example lastly noticed optimistic progress when, in 2019, the CJEU handed down Judgement Fee v. Poland,[3] wherein the Court docket “tackled the problem of precept on the coronary heart of the matter: adherence to the Rule of Legislation through honouring judicial independence and irremovability.”[4]

This transient introduction serves the aim of highlighting that the CJEU has the potential to play a pivotal function within the defence of elementary rights. It is because, regardless of the ceaseless work of the opposite establishments in stopping and monitoring violations of elementary rights, solely the CJEU’s judgment has the authorized power vital for a agency response to violations of elementary rights, because it has seemed to be safeguarding EU values. And it’s the mixture of each implies that permits for sturdy and efficient safety of elementary rights throughout the EU. Thus, we lastly arrive on the case that offers rise to our textual content: the infringement motion introduced by the European Fee towards Hungary on 19 December 2022.[5] We don’t intend to make an exhaustive evaluation of the case, solely of the half that constitutes the novelty. At challenge is the adoption of a number of guidelines by the Hungarian authorities that, stripped of its fictitious issues, reveal a systemic assault on the elemental rights of LGBT+ individuals, insofar as they impose a collection of prohibitions and restrictions on gender non-conformity, gender reassignment or the promotion and/or show of homosexuality.

On 5 June 2025, the Opinion of the Advocate Normal on this case was printed. Supporting the arguments invoked by the European Fee, Advocate Normal Ćapeta invoked the breach of elementary rights as the problem at coronary heart of Hungary’s infringement, particularly the failure to adjust to Article 2 TEU. The novelty introduced on this Opinion is exactly that Advocate Normal Ćapeta highlights the breach of Article 2 by the Hungarian state. Firstly, Advocate Normal Ćapeta inquires on the justiciability of Article 2 TEU, reminding that the CJEU has discovered on a number of events – together with the 2 conditionality judgments that we’ve got already addressed[6] – that the values of the referred Article are given concrete expression in rules containing legally binding obligations for the Member States, concluding that “sure obligations are certainly imposed on the Member States instantly on the premise of Article 2 TEU” and suggesting that the Court docket “use[s] the chance supplied by the current case so as to affirm such a studying”,[7] quoted in its personal case-law. Seeing that, below Article 258 TFEU, the Court docket is competent to seek out {that a} Member State has didn’t fulfil an obligation below the Treaties, Advocate Normal Ćapeta argues that, provided that “Article 2 TEU creates authorized obligations for the Member States, enforcement of these obligations by a declaration of infringement in proceedings introduced pursuant to Article 258 TFEU is a part of the strange competences of the Court docket of Justice below the Treaties.”[8]

After addressing the professionals and cons of granting justiciability to Article 2 TEU, Advocate Normal Ćapeta furthers the argument by establishing that “the criterion that triggers the discovering of an infringement of Article 2 TEU isn’t the amount or seriousness of the breaches of elementary rights or different elementary rules of EU regulation, however relatively the negation of the values of Article 2 TEU by a Member State.”[9] Densifying the systemic method to breaches of elementary rights, Advocate Normal Ćapeta displays that “an infringement of Article 2 TEU doesn’t happen merely as a result of the opposite breaches are critical. It’s relatively the reverse: as a result of the foundation explanation for these breaches is a negation of the values enshrined in Article 2 TEU, they themselves grow to be each critical and systemic”,[10] negatively impacting the functioning of the EU authorized order, because it reduces the breaching Member State’s means to adjust to different obligations below EU regulation. In different phrases: as a result of Hungary repudiates the values contained inside Article 2 TEU, it fails to adjust to the particular and sectorial EU secondary regulation that’s talked about within the Fee’s reference to the Court docket of Justice.

Following literature on the matter, we’ve got defended this systemic method to the infringement process as a method to defend elementary rights within the EU.[11] If the Court docket of Justice accepts – or expands on – these arguments, the paradigm of jurisdictional defence of elementary rights will see a optimistic change, as will probably be potential to deal with critical breaches extra deeply and successfully handle the foundation of rule of regulation backsliding in EU Member States. This judicial mechanism for the defence of elementary rights may be very a lot wanted to enhance the opposite, non-judiciary means and initiatives to advertise societies primarily based on the rule of regulation wherein elementary rights are revered and enforced. We will likely be following developments on this case intently. And we hope that the CJEU will quickly present one other landmark choice within the development of a Union wherein pluralism, non-discrimination, tolerance, justice, solidarity and equality prevail.

[1] Amongst others, see Joana Covelo de Abreu, “An method to right now’s EU constitutionality management – understanding this EU inter-jurisdictional phenomenon in gentle of efficient judicial safety”, UNIO – EU Legislation Journal, v. 3, no. 2 (2019), and Gonçalo Martins de Matos, “A defesa do Estado de Direito na União Europeia e o papel da ação por incumprimento” (Grasp’s diss., College of Minho, 2023), https://repositorium.sdum.uminho.pt/deal with/1822/93740.

[2] On rule of regulation backsliding, see, amongst others, Carlos Closa and Dimitry Kochenov, “Half I. The case for EU bolstered oversight in 4 questions” in Carlos Closa, Dimitry Kochenov and JHH Weiler, EUI Working Paper RSCAS 2014/25: Reinforcing Rule of Legislation Oversight within the European Union, no. 3 (2014): 7, accessed 5 June 2025, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2404260, and Laurent Pech and Kim Lane Scheppele, “Illiberalism inside: rule of regulation backsliding within the EU”, Cambridge Yr-book of European Authorized Research, v. 19 (2017): 7, accessed 5 June 2025, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009280.  

[3] Judgement CJEU European Fee v. Republic of Poland, 24 June 2019, case C-619/18, ECLI:EU:C:2019:531, out there at https://eur-lex.europa.eu/legal-content/pt/TXT/?uri=CELEX:62018CJ0619.

[4] Kim Lane Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz, “EU values are Legislation, in any case: implementing EU values by systemic infringement actions by the European Fee and the Member States of the European Union”, Yearbook of European Legislation, v. 39, no. 3 (2020): 45, accessed 5 June 2025, https://educational.oup.com/yel/article/doi/10.1093/yel/yeaa012/6064852?login=true.

[5] CJEU, case C-769/22, European Fee v. Hungary, out there at https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=;ALL&language=en&num=C-769/22&jur=C.

[6] Gonçalo Martins de Matos, “The relevance of judicial establishments in upholding the rule of regulation”, Official Weblog of UNIO – Considering and Debating Europe, 19 February 2022,

[7] Opinion of Advocate Normal Ćapeta on case C-769/22, delivered on 5 June 2025, recital 166.

[8] Opinion of Advocate Normal Ćapeta on Case C-769/22, delivered on 5 June 2025, recital 193.

[9] Opinion of Advocate Normal Ćapeta on Case C-769/22, delivered on 5 June 2025, recital 237.

[10] Opinion of Advocate Normal Ćapeta on Case C-769/22, delivered on 5 June 2025, recital 241.

[11] On this topic, see Kim Lane Scheppele, “What can the European Fee do when Member States violate fundamental rules of the European Union? The case for systemic infringement actions”, Verfassungsblog, 1 November 2013, accessed 5 June 2025, https://verfassungsblog.de/wp-content/uploads/2013/11/scheppele-systemic-infringement-action-brussels-version.pdf, the above talked about Scheppele, Kochenov and Grabowska-Moroz, “EU values”, and our personal Gonçalo Martins de Matos, “What’s the function of the infringement process in tackling rule of regulation backsliding within the EU?”, UNIO – EU Legislation Journal, v. 8, no. 2 (2023): 26 and following, accessed 5 June 2025, https://doi.org/10.21814/unio.8.2.4697.

Image credit score: by Sora Shimazaki on pexels.com.