Macaristan'ın Ulusal Egemenlik Yasası Davasında Hızlandırılmış Usul

1

By its application, the European Commission requests the Court to declare that, in adopting the a nemzeti szuverenitás védelméről szóló 2023. évi LXXXVIII. törvény (Law No LXXXVIII of 2023 on the protection of national sovereignty; ‘the contested law’), Hungary has failed to fulfil its obligations under Articles 49, 56 and 63 TFEU, Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), Articles 14, 16 and 19 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), Articles 7, 8, 11, 12, 47 and 48 of the Charter of Fundamental Rights of the European Union and Articles 5, 6, 9 and 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

2

By separate document lodged at the Registry of the Court of Justice on 4 December 2024, the Commission requested the Court to determine the present case pursuant to the expedited procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 133 of the Rules of Procedure of the Court of Justice.

3

In support of its request, the Commission states, in the first place, that the contested law aims to protect Hungary’s national sovereignty and establishes, for that purpose, an ‘Office for the Protection of National Sovereignty’ (‘the Office’). It states that that office is responsible for identifying activities that are likely to harm or threaten that sovereignty as well as organisations using foreign support that engage in, or support, activities likely to influence the will of voters or the outcome of elections. The Commission also states that the Office enjoys, in some aspects, a legal regime which derogates from ordinary law, in particular with regard to its powers of investigation, which are both particularly extensive and exempt from the review of administrative courts.

4

In the second place, the Commission submits, in essence, that, taking into account its nature, the present case must be dealt with within a short time.

5

In that regard, it maintains, first, that the contested law is based on a binary distinction between national interests and foreign interests, which does not take into account Hungary’s membership of the European Union. Because of that distinction, the application of that law is likely to hinder the fundamental freedoms of movement which allow EU citizens and entities, such as civil society organisations or information society service providers, to carry out their activities, including economic ones, in Hungary, in particular by establishing themselves there, providing services there or transferring capital in that country. Furthermore, the application of the contested law is likely to breach various fundamental rights guaranteed to the natural or legal persons concerned, such as the right to respect for private life, the right to the protection of personal data, the right to effective judicial protection or the freedoms of association, expression and information which are essential for the proper functioning of a pluralistic and democratic society.

6

Second, the Commission submits, in essence, that the contested law is likely to have (i) a practical and economic impact and (ii) an impact on the reputation of the natural or legal persons to whom it applies – in particular on civil society organisations and information society service providers and, therefore, on media pluralism and media freedom – which are both serious and, as the case may be, difficult to reverse. The Office is empowered to conduct investigations into those persons and, at the end of its investigations, to publish reports describing their activities as ‘threats’ or ‘attacks’ on national sovereignty. Furthermore, the contested law makes it possible to block, or at the very least make much more difficult, the financing of those activities.

7

In the third and last place, the Commission observes that the situation resulting from the adoption of the contested law gives rise to very serious and wide-ranging breaches of a comprehensive body of provisions of primary and secondary EU law, including several provisions enshrining fundamental freedoms or rights that form the foundations of a democratic and pluralistic society.

8

Hungary disputes the merits of the Commission’s request for an expedited procedure, by submitting, in essence, the following arguments.

9

First of all, the Commission merely states, in a general and abstract manner, that the application of the contested law is likely to have (i) a practical and economic impact and (ii) an impact on the reputation of the natural or legal persons to whom it applies, which would be significant and, as the case may be, difficult to reverse, but does not produce any evidence establishing the proven or, at the very least likely, nature of such an impact.

10

Next, the reliance on alleged impediments to the fundamental freedoms of movement guaranteed under EU law or effects on the economic activity of the natural or legal persons to whom the contested law applies is not of an exceptional nature in the context of an action for failure to fulfil obligations by which the Commission seeks to establish the infringement of provisions of EU law which enshrine those fundamental freedoms, and therefore does not constitute, in itself, a matter of exceptional urgency which justifies that a given case be determined pursuant to the expedited procedure.

11

Furthermore, in its argument concerning the existence of breaches of fundamental rights, the Commission disregards the guarantees enshrined in the contested law. In particular, any person the subject of an investigation conducted by the Office and of the report published at the end of that investigation may bring the matter before a court in order, in particular, to establish that an offence has been committed by the Office, to obtain the cessation of that offence or to be granted compensation for the harm that that offence has caused him or her. Furthermore, the findings set out in the reports published by the Office do not, in themselves, amount to a penalty or have direct binding legal force, as follows from the decision of the Alkotmánybíróság (Constitutional Court, Hungary) of 15 November 2024 in Case IV/02551/2024.

12

As regards the alleged combination of infringements of a comprehensive body of provisions of primary and secondary EU law, this does not warrant the application of the expedited procedure but rather a full and complete examination of the numerous complaints relied on by the Commission, which, moreover, are of a complex nature, under the procedures normally applicable under the Statute of the Court of Justice of the European Union and the Rules of Procedure thereof.

13

Lastly, Hungary observes that while the Commission submitted to the Court a request that the present case be determined pursuant to the expedited procedure, the Commission refrained, in the context of the pre-litigation procedure, from applying shorter time limits than the usual ones, which demonstrates the non-urgent character of the present case. Furthermore, the conduct of that institution in the pre-litigation procedure differs from that adopted in other cases, in which it applied shorter time limits than the usual ones, without, however, subsequently requesting the Court to determine those cases pursuant to the expedited procedure.

14

In that regard, it should be borne in mind that, under Article 133(1) of the Rules of Procedure, at the request of the applicant or the defendant, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the other party, decide that a case is to be determined pursuant to an expedited procedure.

15

In the present case, Hungary disputes the merits of the Commission’s request for the present case to be determined pursuant to such an expedited procedure, by calling into question, in particular, the statement made by that institution concerning the harmful impact arising from the contested law. However, that Member State does not deny that the objective of that law is to protect its national sovereignty, nor that it establishes, for that purpose, the Office, which is responsible, in essence, for investigating (i) activities which are likely to harm or threaten that sovereignty and (ii) organisations using foreign support that engage in, or support, activities likely to influence the will of voters or the outcome of elections. Moreover, that objective is expressly stated in the preamble to that law, which refers, in particular – as is apparent from the originating application of the Commission, without being disproven by Hungary – to the need to ‘ensure democratic debate and transparency in public and social decision-making processes [and] to disclose foreign interference attempts and to prevent similar attempts’. In addition, in that same originating application, the Commission states that, under Article 11 of the contested law, ‘if the Office finds or discovers facts or circumstances which may lead to the initiation or conduct of infringement proceedings, criminal proceedings, administrative proceedings or other proceedings, it shall, to that end, inform the body authorised to conduct the proceedings of the data and facts brought to its attention’. Furthermore, pursuant to the amendment of the Hungarian Criminal Code provided for in Article 32 of that law, certain persons connected with those organisations may be subject to penalties for using prohibited foreign support in the course of their activities. Hungary, however, does not dispute that characterisation of the contested law.

16

Consequently, it must be found that Hungary does not dispute the content of the provisions referred to in the preceding paragraph per se, but rather, in essence, the proven and harmful nature of the impact resulting from them. Such a challenge is not sufficient to reject the Commission’s argument concerning the need to establish within a short time whether or not those provisions contravene EU law in order to prevent that impact from occurring, if necessary.

17

In the light of the foregoing, it must be found that the general interest requires that the question of the compatibility of the contested law with EU law be decided as soon as possible, so as to remove any harmful uncertainty in that regard and, therefore, to enable Hungary either to apply the contested law fully and without impediment when exercising its national powers and sovereignty, in the event that that law proves to be consistent with EU law, or, otherwise, to take the necessary measures.

18

It has previously been held, in other contexts, that where a reference for a preliminary ruling raises serious uncertainties which affect fundamental issues of national constitutional law and EU law, it may be necessary, having regard to the particular circumstances of such a case, to deal with it within a short time pursuant to Article 105(1) of the Rules of Procedure (orders of the President of the Court of 19 October 2018, Wightman and Others, C‑621/18, EU:C:2018:851, paragraph 10, and of 29 November 2024, LC and CP, C‑758/24 and C‑759/24, EU:C:2024:1012, paragraph 8). In the present case, in the same manner, in the case of a direct action – since the present case concerns the constitutional relations between the European Union and its Member States in the fundamental and sensitive area of public and democratic life – it is necessary to deal with the case within a short time pursuant to Article 133(1) of the Rules of Procedure.

19

That conclusion is not called into question by Hungary’s argument relating to the complex nature of the complaints relied on by the Commission. Admittedly, as argued by Hungary, the complex and sensitive nature of the questions which arise in a given case may lead to the conclusion, taking into account the legal and factual context of that case, that the case does not lend itself easily to the application of the expedited procedure (judgment of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 105); however, that circumstance does not in itself preclude resorting to such a procedure – the methods of implementation of which make it possible to take into account all the characteristics specific to each case (order of the President of the Court of 7 April 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:232, paragraph 17) – in cases where the recourse to that procedure is necessary, or carrying out the required examination of complex complaints.

20

It is, therefore, apparent that the nature of the present case requires that it be dealt with within a short time. Accordingly, it is appropriate to order that the case be determined pursuant to the expedited procedure provided for in Article 133 of the Rules of Procedure.

On those grounds, the President of the Court hereby orders: