The first attempts: infringement actions and the Hungarian constitutional reforms

In 2012, a few weeks after the entry into force of the new Hungarian Basic Law, perhaps the key moment in the Hungarian constitutional backsliding process, the Commission decided to launch three separate infringement actions, targeting limited and specific aspects of the Hungarian reforms.Footnote ⁷ One action, which was closed in the pre-judicial phase, concerned the functioning of the Hungarian Central Bank. A second action addressed the creation of a new data protection agency and the removal of the Data Protection Supervisor from his post.Footnote ⁸ The third action related to the controversial reforms of the judiciary.

The Commission’s approach was defined as an indirectFootnote ⁹ (or ‘piecemeal’Footnote ¹⁰ ) one, as the Commission decided to concentrate on fairly technical questions of compatibility of the reforms with specific provisions of EU primary and secondary law, with no reference to the broader democratic and rule of law questions at stake. The approach was based on a narrow understanding of the procedure of Article 258 TFEU, which, the Commission considered, could only be used to tackle national measures falling squarely within the scope of EU law. In other words, the official reaction of the Commission at the time was to see the Hungarian problem merely as an issue about the correct application of EU law. The infringement action on the judicial reforms illustrates that approach clearly. At first, the Commission expressed greater concerns, on the lowering of the retirement age for judges and prosecutors, but also more generally on the new legislation on the organisation of courts, including on the creation of the controversial National Judicial Office and the early termination of the mandate of the Supreme Court President.Footnote ¹¹ However, when it had to define the scope of its action in the reasoned opinion, it focused uniquely on the question of the early retirement of judges and framed the issue purely as an age discrimination question, a question related to the compatibility of new constitutional provisions with EU non-discrimination Directive 2000/78. The original broad concern with the independence of the judiciary was narrowed down into a question that had at is focal point a different subject matter: EU age discrimination law.

The infringement action was quickly brought before the Court of Justice and decided in November 2012. The Commission won its legal battle, as the Court found that Hungary had breached Directive 2000/78, but the judgment had very limited impact on the Hungarian constitutional backsliding process.Footnote ¹² Because of the action’s narrow focus, Hungary could simply fix the concrete EU law breach by offering the judges who were to be retired either monetary compensation or reinstatement, but with no guarantee that they could occupy the same position. National authorities thus had ample space to engage in what has been defined as symbolic and creative compliance.Footnote ¹³

The Commission’s approach has been often criticised.Footnote ¹⁴ It has been said that the Commission failed to grasp the real judicial independence challenges, or that it decided to play it safe. While in hindsight the results have undoubtedly been disappointing, the choices were at least understandable at the time. For example, it is obvious today to say that the Commission should have used Article 19 TEU in the infringement action on the judicial reforms. As we now know, Article 19 TEU includes the key obligation to ensure judicial independence of national courts and tribunals acting in the fields covered by Union law. Yet, the groundbreaking interpretation of Article 19 TEU offered by the Court of Justice in ASJP Footnote ¹⁵ could have hardly been anticipated back then, and it was far from evident that Article 19 TEU could have bene read in that sense.Footnote ¹⁶

More fundamentally, a narrow understanding of Article 258 TFEU prevailed at the time.Footnote ¹⁷ Commission President Barroso tried to explain the prevailing institutional understanding distinguishing between a ‘legal’ dimension of the Hungarian question, to be tackled by the Commission in infringement actions, and a more political dimension, which should have been addressed, at the EU level, by the Parliament and the Council.Footnote ¹⁸ For all its proved deficiencies, that approach was not absurd in terms of ensuring the legitimacy of EU intervention, considering in particular the novelty of the challenge:Footnote ¹⁹ the Commission was on firmer ground when it justified its action on the basis of the need to enforce concrete EU law obligations, rather than systematically assessing the constitutional framework of a member state, on the basis of standards that, especially at the time, could have not been considered well-defined.

The Commission’s position in the aftermath of these first actions was, however, less justifiable. Both officially and in the political debate, the Commission claimed full success,Footnote ²⁰ and in the following years the Commission consistently maintained that its intervention had adequately protected the independence of the judicial system, despite clear indications to the contrary.Footnote ²¹ While again, because of the limited framing of its original action, no immediate follow-up action under Article 260 TFEU would have been possible, the Commission should have arguably recognised more explicitly the remaining questions on the independence of the Hungarian judiciary, and avoid celebrating what was evidently only a ‘Pyrrhic victory’.Footnote ²² Ultimately, while the approach might have defensible in theory, it cannot be denied that it had limited – if any – success in practice. Winning the three infringement cases only resulted in narrow amendments of Hungarian legislation, but did not change the larger rule of law and democratic picture. The decision to focus only on Article 258 TFEU, without complementary political action, and with a narrow reading of the powers under the infringement procedure, meant crucially that the most controversial aspects of the Hungarian reforms could not be addressed at the EU level.

After the very limited results achieved in the first phase, the Commission preferred to rely on other strategies when the Polish crisis began. Most importantly, it activated the ‘Rule of Law Framework’, the dialogical pre-Article 7 process to tackle the Polish’s judicial reforms, while it also maintained mostly informal political pressure on Hungary. Between 2012 and 2017, the Commission did not pursue any infringement action more or less explicitly concerned with the protection of EU values.Footnote ²³

Infringement actions on the independence of the judiciary

In 2017, the Communication ‘EU law: Better results through better application’ anticipated a change in the Commission’s infringement policy.Footnote ²⁴ The Commission promised a more strategic approach, identifying positive structural and policy prioritiesFootnote ²⁵ that could serve to tackle ‘wider problems with the enforcement of EU law’. Addressing ‘cases in which national law … prevents national judicial systems from ensuring that EU law is applied effectively in accordance with the requirements of the rule of law and Article 47 of the Charter on Fundamental Rights of the EU’ and focusing on ‘infringements which affect the capacity of national judicial systems to contribute to the effective enforcement of EU law’ were two key priorities identified in the Communication.

Yet it was only after the landmark ASJP decision of the Court of Justice in February 2018 that the Commission started turning that promise into concrete action. The Court’s expansive reading of the scope of application of Article 19 TEU – broader than the rest of EU lawFootnote ²⁶ – and of its material content, including – most crucially – the obligation to guarantee judicial independence of, essentially, all national courts, allowed the Commission to start infringement actions against measures undermining the independence of the judiciary directly on the basis of Article 19 TEU, without having to prove the existence of a link with other substantive provisions of EU law. Since then, infringement actions protecting the independence of the judiciary have become a true priority of the Commission.Footnote ²⁷

The first and key example is the action on the independence of the Polish Supreme Court, already widely discussed in the literature.Footnote ²⁸ The action was launched in July 2018, shortly after the entry into force of the provisions that envisaged lowering the retirement age of the Polish Supreme Court judges from 70 to 65 years, with these amendments being applicable also to sitting judges. The law also assigned to the President of the Republic, upon consultation with the National Council of the Judiciary, a discretionary power to decide on the extension with those mandates. The action is remarkable because, for the first time, the Commission initiated an infringement procedure on the basis of Article 19 TEU, and in its decision of June 2019, the Court, again for the first time, found a breach of Article 19 TEU ‘read in conjunction with’ Article 47 of the Charter.Footnote ²⁹ The Polish measures were considered to be in violation of the principle of the irremovability of judges, a core component of judicial independence,Footnote ³⁰ most crucially as they failed to pursue any legitimate objective. Furthermore, the discretionary powers granted to the President of the Republic to decide on the prolongation of the judges’ mandate undermined the ‘external independence’ of the judiciary, as they could ‘give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests before them’.Footnote ³¹

The infringement action, thanks also – if not first and foremost – to the interim order delivered by the Court,Footnote ³² had a positive impact on the Polish situation, at least in the immediate aftermath of the rulings. The interim order had in fact already asked Poland to suspend the application of the new measures on the retirement age, to allow the sitting judges to continue carrying out their duties in the same position, and to refrain from nominating other judges to those positions. It truly had a ‘remarkable reach and magnitude’,Footnote ³³ as it essentially operated in a retroactive manner, forcing a return to the situation predating the entry into force of the measures imposing early retirement.Footnote ³⁴ The order and the final judgment prevented a full takeover of the Supreme Court, which in the months following the judgments continued to resist the government’s attempt to capture the court, including by sending several preliminary references to the Court of Justice.Footnote ³⁵

While the government’s control over the Supreme Court, and in general over the Polish judiciary, has gradually increased since then,Footnote ³⁶ the infringement action itself demonstrated the potential for a more direct approach by the Commission.Footnote ³⁷ The key difference between the Supreme Court case and the earlier action against Hungary in similar factual circumstances was the legal basis of the procedure: Article 19 TEU, in the Polish case; Directive 2000/78, in the Hungarian one. In the Supreme Court case, the Commission and the Court could, first of all, concentrate on the key issue at stake – the independence of the Polish court – and second, require more than technical changes, such as introducing the possibility to grant compensation to the forcefully retired judges. In order to comply with the interim order and the final judgment, the Polish authorities had to demonstrate that the new framework regulating the Supreme Court complied with the basic requirements of independence, including the principles of irremovability and of no undue external influence over the Supreme Court’s judges.

Since the judgment in the Supreme Court case, the Court of Justice has ruled on two other infringement actions based on Article 19 TEU, and another one is still pending in Luxembourg. The first action was decided in November 2019,Footnote ³⁸ few months after the Supreme Court’s ruling, and concerned the reforms to the ordinary courts’ system. One of the aspects raising concerns was again an issue of retirement age, with the Polish authorities introducing a differentiation between men and women, and granting to the Ministry of Justice the possibility to extend the judges’ mandates. The Commission relied both on equal treatment provisions – Article 157 TFEU, as well as Directive 2006/54 – and on Article 19 TEU. In its decision, the Court of Justice decided in favour of the Commission.

The second action related to the creation of the infamous ‘Disciplinary Chamber’ within the Supreme Court and more generally to the reforms of the disciplinary regime of judges.Footnote ³⁹ Once again, the Commission relied most crucially on Article 19 TEU, but also claimed an infringement of Article 267 TFEU, insofar as the new disciplinary regime restricted the Polish courts’ possibility to make use of the preliminary reference procedure. The infringement action was decided in July 2021, more than a year after the Court of Justice had adopted an interim orderFootnote ⁴⁰ asking Poland to stop the operations of the Disciplinary Chamber. In its judgment on the infringement case, the Court most importantly agreed that Poland had breached Article 19 TEU by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, as the latter could not be considered an independent court according to EU law standards,Footnote ⁴¹ in particular when taking into consideration the broader context in which it was created, the systemic overhaul of the Polish judiciary, and the politicisation of the Council of the Judiciary that has a key role in the appointment of the Supreme Court judges.Footnote ⁴² The Court of Justice then also concluded that the other reforms to the disciplinary regime, including the expansion of the notion of disciplinary offence to the content of judicial decisions, breached Article 19 TEU and Article 267 TFEU. Despite the Commission’s win in Luxembourg, this decision was, however, not as immediately effective as that of the Supreme Court, and soon after the Court’s decision, the Commission was forced to initiate an Article 260 TFEU procedure in light of the Polish authorities’ failure to take measures to implement the interim order and the judgment.

The third and final action related to the so-called ‘Muzzle law’, which Poland adopted in the aftermath of the A.K. ruling, in order – broadly speaking – to limit the growing impact of the Court of Justice’s case law on judicial independence. The action is still pending in Luxembourg. In this case too, the Commission brought a request for an interim order, which was granted by the Court of Justice in July 2021.Footnote ⁴³ The Court of Justice asked the Polish authorities to suspend all remaining activities of the Disciplinary Chamber, including those on the authorisation to initiate criminal proceedings against judges, as well as to suspend the application of norms that prohibit national courts from verifying compliance with EU requirements of judicial independence, and finally to ensure that judges do not have face disciplinary liability for examining compliance with the same EU law requirements. The Commission and the Court’s arguments are, once again, based on Article 19 TEU, supported also by Article 47 of the Charter and Article 267 TFEU. In light of the Polish refusal to comply with the order, in September 2021 the Commission launched an Article 260 TFEU actionFootnote ⁴⁴ requesting the Court to impose penalty payments.

Seen together, these infringement actions reveal a mixed picture, with the Supreme Court and Ordinary court cases suggesting a more positive analysis, and the other two procedures a more sceptical one. On the one hand, there is no doubt that these actions are a remarkable step forward compared to the indirect approach followed in the Hungarian case described in the section above. In substance, the Commission can bring before the Court the key issue at stake: whether or not Polish (or potentially any other member state, of course) measures are undermining the principle of judicial independence affirmed by Article 19 TEU. What is crucial is that the judgments of the Court in these infringement actions cannot be answered with technical adjustments or by reverting to techniques of symbolic or creative compliance. Or at the very least, it is much more difficult to do so: if the Commission correctly frames the case,Footnote ⁴⁵ and the Court of Justice decides in its favour, after the ruling the member state responsible for the breach of EU law must show that national rules, as amended after the Court’s ruling, adequately respect and ensure judicial independence. And the Commission can make use of the financial penalties procedure under Article 260 TFEU if and when the member state fails or refuses to do so.

On the other hand, what is also becoming evident is that even these more robust infringement actions have not radically changed the bigger picture. A government truly determined to push forward an illiberal agenda may still attempt to find workarounds and avoid a full implementation of the Court’s decisions, as was done by Poland with the Muzzle law; or even open a direct confrontation with the Court and the Commission, as the Polish government has done, inter alia, by instrumentally asking the Polish Constitutional Tribunal to declare the Court of Justice’s case law on judicial independence ultra vires.Footnote ⁴⁶ This shows, first, that the Court of Justice’s decision is not the final step of the story, and that the Commission should carefully follow what happens after it, and be ready to activate Article 260 TFEU where necessary; second, and more generally, that infringement actions need always to work together with other values-protection tools. I will return to these themes in the following sections.

Infringement actions based on the Charter of Fundamental Rights

The second development to be considered is the Commission’s reliance on the Charter of Fundamental Rights in a series of infringement actions against Hungary. This novelty, which has solved the ‘legal enigma’Footnote ⁴⁷ on whether the Charter could be used in Article 258 TFEU proceedings, has been seen as part of the more ‘political’ approach to infringement actions developed by the last two Commissions.Footnote ⁴⁸ After the rulings of the Court of Justice in the Usufruct,Footnote ⁴⁹ NGOs,Footnote ⁵⁰ and CEU Footnote ⁵¹ cases, the debate is settled: the Commission may start an infringement action based on the Charter whenever a national measure falls within the scope of EU law, including when a national measure restricts free movement, and the member state in question relies on one of the accepted grounds of derogation under EU law.

The question of the applicability of the Charter in infringement actions was clarified for the first time in the Usufruct case.Footnote ⁵² In this action, the Commission brought before the CourtFootnote ⁵³ a series of Hungarian measures terminating usufruct rights for foreign and domestic investors, arguing that they restricted free movement of capital under Article 63 TFEU. In addition, it also claimed, as an independent ground of review,Footnote ⁵⁴ that Hungarian legislation infringed Article 17 of the Charter on the right to property. While the Advocate General in his opinion suggested that the Court should not examine the fundamental rights’ point, as in his view that would have entailed an undesirable extension of the ERT jurisprudence,Footnote ⁵⁵ the Court did consider it, found the Charter applicable, and ultimately determined that Hungary had breached Article 17 of the Charter.

In the NGOs case, the Court then further clarified that the possible breach of the Charter can be raised as a fully independent point. This second infringement action concerned the 2017 law on the ‘Transparency of Civil Society Organizations’, which included a series of demanding ‘transparency’ and publicity requirements for organisations ‘receiving funding from abroad’.Footnote ⁵⁶ The Commission argued that with the adoption of that law, Hungary had breached EU free movement of services, as well as the Charter. The action was launched in July 2017, only two weeks after the entry into force of the Hungarian law, and brought before the Court of Justice in December 2017, but unfortunately was only decided in June 2020. The Court fully agreed with the Commission’s arguments and found a violation of Article 63 TFEU on free movement of services, as well Articles 7 (right to respect for private life), 8 (right to the protection of personal data) and 12 (freedom of association) of the Charter. It relied on the earlier decision in Usufruct in order to demonstrate that the Charter was applicable to the case, repeating that when a member state justifies a measure restricting a fundamental freedom on the basis of one of the grounds provided in the Treaties, or relying on an overriding reason of public interest, that member state is implementing EU law in the sense of Article 51 of the Charter, and thus the Charter is applicable. Then, in partial contrast to Usufruct, it went on to analyse the Charter claims in an autonomous fashion: after finding a breach of Article 63 TFEU, the Court moved to assess the alleged infringement of Article 12, first, and then of Articles 7 and 8 of the Charter. For all three fundamental rights at stake, the Court assessed whether there was a limitation of the right, and then whether that limitation was justified, concluding that the Charter was breached as the Hungarian legislation failed to pursue any objective of general interest.

A largely similar approach was then followed in the so-called CEU case, in which the Commission challenged the reform of the Higher Education Law that imposed restrictive requirements for foreign higher education institutions in Hungary, and which had the clear objective to target the Central European University (CEU).Footnote ⁵⁷ The Commission found the Hungarian amendments incompatible with EU free movement of services, the GATS agreement, but also with three fundamental rights protected by the Charter: the right to academic freedom (Article 13), the right to education (Article 14), and the freedom to conduct a business (Article 16). As was the case in the NGOs ruling, the fundamental rights’ points were assessed as autonomous grounds of infringement.

The step taken by the Commission and the Court in these three cases is extremely significant. The Court was called to do something unprecedented in these infringement actions: to directly assess whether a member state had breached the Charter and EU fundamental rights. In his Opinion in the Usufruct case, Advocate General Øe found this new type of cases to some extent concerning, and possibly leading to an over-expansion of the Court’s competences. Yet I would argue that it perfectly follows from the logic of the Treaties that the Court can have jurisdiction to decide on a breach of the Charter in an infringement action, as the Charter contains primary law obligations that can certainly be enforced via Article 258 TFEU.

The Charter is an important addition to the infringement procedure. It brings an added value comparable to Article 19 TEU: it allows the Commission and the Court to focus on the core matter – the fundamental rights’ restriction – and not only on what can often be the less dramatic and less significant substantive point of EU law, such as a free movement of capital or services’ restriction. As well put by Advocate General Kokott in her Opinion in the CEU case, ‘the separate examination of fundamental rights … reflects the particular significance and nature of the infringement more clearly’. ^{Footnote 58} It also becomes harder for the national authorities to engage in forms of creative or symbolic compliance, considering that the member state cannot simply fix the narrow infringement of, e.g., free movement law, but it will have to show that the amendments to national legislation ensure respect for the Charter rights in question.

At the same time, the three rulings described should not be seen as the groundbreaking new approach suggested by some literature.Footnote ⁵⁹ All three decisions make clear that the mandate of the Commission, and in turn of the Court, is still limited. The Commission has not tried to advance, and the Court has not accepted, infringement actions based on the Charter for cases falling outside the scope of EU law, or actions based directly on Article 2 TEU. The Commission, when it wants to rely on the Charter in infringement actions, will still need to prove that the national measures under review fall within the scope of EU law, for example because they restrict free movement law, and this in turns trigger the applicability of the Charter.Footnote ⁶⁰ In other words, the usual limits of Article 51 of the Charter continue to apply in the context of an Article 258 TFEU procedure.

However, in comparison to at least the first actions based on Article 19 TEU, the NGOs and CEU infringement procedures have not been as successful. Far from it. Most crucially, the Commission failed to file a request for interim orders, and the actions were ultimately decided more than three years after the entry into force of the relative law and the initiation of the Article 258 procedure by the Commission. This has had significantly negative consequences in the CEU case, as the University had already relocated part of its programmes to Vienna in the meantime. The same is true also for other civil society organisations targeted by the ‘Transparency law’, such as the Open Society Foundation, which moved its offices to Berlin. In the latter case, furthermore, while Hungary, after a Commission letter of formal notice under Article 260 TFEU,Footnote ⁶¹ replaced the first NGO law with a new piece of legislation, the new regulation might still be problematic from a fundamental rights’ perspective.Footnote ⁶² The Commission will therefore need to closely monitor the Hungarian situation in order to verify whether the new system complies with the ruling of the Court, including where it asks for the fundamental rights breaches to be remedied.

The scope of application of the infringement procedure

The first question to be tackled is the precise scope of application of the infringement procedure, and most crucially whether it would be possible to rely on Article 2 TEU in order to bring before the Court of Justice national measures that breach EU values, but otherwise fall outside the scope of EU law. The question is a complex one, as the Treaties do not answer it in a straightforward manner.Footnote ⁶⁷ There is no provision that explicitly excludes the Court’s jurisdiction on Article 2 TEU in the same way that Article 24(1) TEU limits it on Common Foreign and Security Policy matters, nor do the Treaties clearly state that the infringement procedure is not available for values’ violations, as Article 126(1) TFEU does with respect to the excessive deficit procedure. At the same time, the Treaties establish that the Court cannot review in substance decisions on threats to, or breaches of, EU values taken under Article 7 TEU. According to Article 269 TFEU, the Court can only review respect for the procedural stipulations of Article 7 TEU. More generally, the Treaties created a specific system for the protection of EU values: Article 7 TEU.

The Court of Justice has not clarified the point either. It has acknowledged that Article 2 TEU produces legal effects. It is, notably, the constitutional foundation of mutual trust.Footnote ⁶⁸ Linking Article 2 TEU to Article 49 TEU, the Court then recently established the so-called non-regression principle, which prohibits the member states from adopting legislation that brings about a reduction in the protection of the rule of law.Footnote ⁶⁹ In that context, the Court affirmed that ‘compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State’.Footnote ⁷⁰ In broader terms, the case law shows a growing number of references to Article 2 TEU.Footnote ⁷¹

On the other hand, the Court has not yet confirmed that Article 2 TEU is directly enforceable. Article 2 has so far been used, by and large, as an interpretative device, to support conclusions reached on the basis of different provisions, including for example Article 19 TEU, but it has never been the key focal point of a Court of Justice decision. The cases discussed in the previous sections, for example, cannot be seen as an opening to the direct judicial enforcement of Article 2 TEU, as they were based on Article 19 TEU or on the Charter of Fundamental Rights, with the latter being applicable because the contested national measures fell within the scope of EU law.Footnote ⁷² In an opinion in another Polish case, in which the referring court relied on Article 2 TEU as a standalone provision, Advocate General Tanchev has even claimed that ‘that article does not as such figure among provisions under which the compatibility of national legislation with EU law should be assessed and which could therefore per se lead the referring court to disapply a national provision by following the interpretation given by the Court of Justice’.Footnote ⁷³ While it is unclear whether that statement could be generalised beyond its specific context, it resonates with other views expressed at the Court.Footnote ⁷⁴

The Treaties and the current Court’s case law, therefore, leave room for at least two conflicting interpretations. The first supports the view that infringement actions can be based directly on Article 2 TEU, as a standalone norm or eventually in combinationFootnote ⁷⁵ with other EU law provisions.Footnote ⁷⁶ According to this first reading, relying on Article 2 TEU would allow the bringing before the Court of issues that would otherwise fall outside the scope of Union law. A second reading argues, in contrast, that Article 2 TEU does not create sufficiently precise legal obligations that can be enforced in infringement actions.Footnote ⁷⁷ In order to start an infringement action, the Commission would always have to show that a national measure falls within the scope of EU law as it breaches another EU law norm. The latter view was also expressed by the Commission a few years ago, when in its Communication on the adoption of the Rule of Law Framework, it argued that the adoption of the new mechanism was necessary as ‘there are situations of concern which fall outside the scope of EU law and therefore cannot be considered as a breach of obligations under the Treaties’. ^{Footnote 78}

The latter reading is preferred here, essentially for two related reasons. The first has to do with the very text of Article 2 TEU. Article 2 TEU merely affirms that the founding values of democracy, the rule of law and human rights ‘are common to the Member States’, but as such it does not impose any explicit obligation on the member states to respect or promote those values, as would be required by Article 258 TFEU which allows the Commission to start infringement actions when a member state ‘has failed to fulfil an obligation under the Treaties’. A clear obligation only emerges when Article 7 TEU or Article 49 TEU are brought within the picture – as was done by the Court in developing the non-regression principle.

This brings us to the second point. As noted above, it should not be forgotten that the Treaties consciously and explicitly created a different system for the protection of the EU founding values: Article 7 TEU.Footnote ⁷⁹ For questions falling outside the scope of EU law– and which cannot be brought under the Court of Justice’s purview under Article 19 TEU or other EU law provisions – the more convincing reading is that Article 7 TEU still represents a lex specialis for the enforcement of EU values.Footnote ⁸⁰ This is to be understood in a narrow sense: wherever there is a specific Treaty obligation breached by a national measure, the infringement procedure and Article 7 can be used at the same time. But when there is no link between the national measure threatening or breaching one of the EU values and a provision of EU law other than Article 2 TEU, then only Article 7 TEU is applicable. To reach a different conclusion would amount to a circumvention of the enforcement scheme created by the Treaties, which would render the special decisions-making procedure and the special institutional roles of Article 7 TEUFootnote ⁸¹ practically meaningless.

This reading is also better aligned with the current state of the Commission’s practice and the Court of Justice’s case law. As argued earlier, the Court has so far only used Article 2 TEU as a rhetorical or interpretative device, but never as an independent ground of review of national or EU measures. And the Commission has been reluctant to deploy it in infringement actions. Only last year, in one of the new procedures on the anti-LGBTQ+ legislation in Hungary,Footnote ⁸² the Commission made a first explicit reference to Article 2 TEU in its letter of formal notice to Hungary. Even in that case, however, the Commission did not use Article 2 TEU in a fully autonomous manner, nor did it use it to expand the scope of EU law. On the contrary, it first showed that the national legislation under discussion fell within the scope of EU law, as it violated a series of norms of primary and secondary law, including the Charter. Then, the Commission argued that ‘because of the gravity of these violations, the contested provisions also violate the values laid down in Article 2 TEU’. The Commission’s position in the letter of formal notice suggested, therefore, a more direct – though still not fully independent – route for the enforcement of Article 2 TEU. The Article 2 point was, however, not repeated in the press release announcing the second step of the infringement action, the letter of formal notice.Footnote ⁸³ It seems that the Commission has dropped that argument at least in this case, showing once more a certain caution in relying directly on Article 2 TEU.

Admittedly, the case law and institutional practice is very much in flux, and given that the Treaties leave the question relatively open, a development in a different direction than the one proposed cannot be completely excluded. In particular, the Court’s development of the non-regression principle in the Repubblika case might pave the way for a broader interpretation of Article 2 TEU than the one preferred so far. On a broad reading of the non-regression principle,Footnote ⁸⁴ it could even be suggested that any national measure that brings about a reduction in the level of protection of the rule of law (or potentially any other EU value?) could be targeted by an infringement action. So far, however, the non-regression principle has had a much smaller impact in the Court’s case law, and has been used only to support conclusions based on other EU law provisions, most crucially Article 19 TEU.Footnote ⁸⁵ In any event, regardless of the legal feasibility of a move towards infringement actions based on Article 2, there are also other normative concerns that may play in favour of a limited reading of the scope of application of the infringement procedure, and that have to do with how we conceive the role and place of infringement actions in the EU values-protection toolbox.

The place of infringement actions in the values-protection toolbox

In comparison with views that suggest that infringement actions can become a tool of militant democracy,Footnote ⁸⁶ and that more generally make Article 258 the centerpiece of the EU response to constitutional backsliding, this article opts for a more limited reading of the function and place of infringement actions in the values-protection toolbox. It argues that infringement actions, however framed, will never be able to bring those challenges and breaches to an end in a top-down fashion, as they are structurally unable to tackle the root causes of constitutional backsliding. Furthermore, shifting the responsibility for values-protection almost entirely to the Court of Justice, and forcing it to adjudicate those complex questions on the basis of often relatively unclear standards, could endanger the Court’s authority and legitimacy.

As for the first point, it must be highlighted how the processes of constitutional backsliding the EU is confronted with have a clear political dimension.Footnote ⁸⁷ These processes cannot be reduced to a sum of technical infringements of EU law that can be tackled and remedied by targeted judicial interventions of the Court of Justice, to be implemented through narrow amendments of domestic legislation by national authorities. As noted when discussing the early Hungarian cases, tackling constitutional backsliding as if it was a series of ‘ordinary’ infringements of EU law is a strategy that has already failed. Above and beyond the precise amendments to national legislation that may create conflicts with EU law,Footnote ⁸⁸ constitutional backsliding processes can be seen as entailing a more comprehensive and systemic project of dismantling domestic constitutional structures and guarantees, undermining the separation of powers and/or checks-and-balances systems at the national level.Footnote ⁸⁹ Constitutional backsliding creates a new ‘social contract’, as highlighted by Adamski, that cannot be undone by national or international courts,Footnote ⁹⁰ which are almost by definition unable to provide solutions to the underlying conflicts that offer context and reasons for concrete amendments to, for example, rules on judicial independence. In tackling these challenges, judicial solutions alone cannot replace domestic and European political processes.Footnote ⁹¹

This is all the more true if we consider that, in the EU legal order, compliance still largely rests on the willingness of member states to abide the Court of Justice’s rulings and on the cooperation of national courts, in the absence of direct mechanisms of enforcement comparable to federal systems.Footnote ⁹² In highly controversial cases such as those that could be based on Article 2 TEU, where the domestic ‘costs’ of compliance and obedience would be very high, that willingness could at the very least not be taken for granted. As the Polish – but also Hungarian – cases show, there is no guarantee of a positive result even after the intervention of the Court of Justice or of (international) courts in general. Political, legislative, administrative – and even societal and cultural – changes are required at the national level. Judicial intervention at the EU level may stimulate those changes, but is only a step in a much broader process.

An extensive reliance on Article 258 TFEU could also be problematic from the point of view of the Court’s authority and legitimacy, and put them under strain.Footnote ⁹³ Asking the Court of Justice to determine whether a member state is complying with ‘the rule of law’ or the other values of Article 2 TEU entails a high risk of politicisation of the European judiciary,Footnote ⁹⁴ especially taking into account that for many sub-components of those values, clear standards are hard to find. While it is true that the accession process, as well as the recent practice of the institutions,Footnote ⁹⁵ has helped to clarify in particular a common rule of law core, the level of abstraction of many sub-principles remains fairly high. In many cases, it would be difficult to identify sufficiently detailed obligations that a member state would have breached and that could be assessed by a judicial body. Only in the area of judicial independence have clearer obligations been identified, but respecting judicial independence is in any event a binding obligation that can be enforced under Article 19 TEU and 47 of the Charter, without relying on Article 2 TEU. For many other rule of law or democratic aspects, precise standards remain much harder to find,Footnote ⁹⁶ and asking the Court to develop them would enormously stretch the expansion of EU judicial competences.Footnote ⁹⁷

It should perhaps be added that the steps already taken by the Commission and the Court are not uncontroversial: the interpretation of Article 19 TEU, both in terms of substance and of scope of application, is a broad extension of the Court’s purview over domestic judiciaries, and one that already raises the question of the precise judicial independence standards to be applied.Footnote ⁹⁸ Even in the now well-established infringements actions under Article 19, the Court of Justice ‘is knowingly confronting … live domestic political conflict[s]’Footnote ⁹⁹ and its rulings therefore have highly political implications. The use of the Charter in infringement actions can also be seen by some as an extension of the Court’s jurisdiction,Footnote ¹⁰⁰ and it certainly entails a new and unique type of assessment, where the Court of Justice directly evaluates whether national measures comply with fundamental rights, an exercise comparable to that of the European Court of Human Rights. All things considered, the Court’s more robust intervention in the rule of law and fundamental rights arena has already triggered harsh reactions in some national arenas. Especially in Poland, the Court seems to be increasingly perceived as a partisan actor, rather than an objective arbiter, and the direct and explicit disobedience of the Polish Constitutional Tribunal is a strong challenge to the Court’s authority. Taking a new fundamental step forward may open broader authority and legitimacy questions. The Court crucially stepped into the values-protection battle, almost forcing the Commission to take up the challenge more firmly; but the burden to protect the shared values cannot be left to the Court alone.

What role then should infringement actions have in the values-protection toolkit? My argument is that Article 258 is more suitable to tackle the more concrete consequences, rather than the root causes, of constitutional backsliding, or in other words to fight the symptoms, rather than the disease itself.Footnote ¹⁰¹ While it is hard to imagine Article 258 TFEU becoming an instrument for a top-down rescue of national constitutional systems,Footnote ¹⁰² taking a more bottom-up perspective could help in better conceiving the role of the infringement procedure. The focus in using Article 258 should be on fighting concrete measures that undermine EU values – such as fundamental rights infringements, but also attacks to judicial independence – thus slowing downFootnote ¹⁰³ the process of backslidingFootnote ¹⁰⁴ and then protecting those domestic actors that can contribute to bottom-up resistance within the member states and to rule of law and democratic renewal in the medium and long term.Footnote ¹⁰⁵ A narrower yet targeted and precise approach to the use of the infringement procedure might go a longer way than broader actions with ill-defined objectives. The good news is that the Commission has already taken steps in that direction: the infringement actions 2.0 described in the first part of the article can be seen as crucially contributing to these objectives. Further initiatives will be explored in the next paragraphs, reflecting on how the effectiveness of infringement actions could be further bolstered with these goals in mind. It should not be forgotten, then, that infringement actions should be seen as part of a multi-dimensional toolkit: and thus, judicial intervention via Article 258 TFEU must be also coordinated with political pressure under Article 7 TEU – despite the often-mentioned difficulties of that system – on the use of the new budgetary conditionality regulation, as well as the other EU monitoring and reporting tools.

Protecting EU values via the infringement action: the next steps

The first and obvious area in which further work could be done is that of judicial independence, continuing to develop the line of infringement cases based on Article 19 TEU, and ensuring that national judges can continue to give full effect to EU law, including EU fundamental rights, in the member states. As regards Poland, the Commission took a new key step in December 2021, launching an infringement action related to the Polish Constitutional Tribunal.Footnote ¹⁰⁶ The action first targets the two 2021 rulings of the Tribunal that have challenged the primacy of EU law, following the example of the earlier action launched in the aftermath of the Bundesverfassungsgericht judgment in Weiss/PSPP. The Commission’s argument is that the rulings breach the principles of autonomy, primacy, effectiveness and uniform application of Union law, as well as Article 19 TEU by giving an ‘unduly restrictive interpretation’ of the principle of effective judicial protection. The second point raised by the Commission is, however, even more relevant for our discussion. The Commission states that it has ‘serious doubts’ about the independence and impartiality of the Constitutional Tribunal and, following the European Court of Human Rights decision in Xero Flor,Footnote ¹⁰⁷ argues that the Tribunal cannot be considered a court ‘established by law’.Footnote ¹⁰⁸ Poland would, therefore, be in breach of Article 19 TEU as it entrusts questions of interpretation and application of EU law to a body that is not an independent and impartial tribunal established by law.

The new infringement action is a fundamental step taken by the Commission, as it targets for the first time in a EU judicialFootnote ¹⁰⁹ procedure the ‘original sin’ of the Polish constitutional backsliding saga: the capture of the Constitutional Tribunal. But it brings new complex challenges. Not only does it further escalate the conflict between the EU and the Polish political and legal orders, again potentially pushing another extremely sensitive question to the Court of Justice, which would once more be called to step into the rule of law battle. But perhaps more crucially, precisely framing the case is much more difficult in the circumstances of the case, as the Commission is not questioning whether a new measure undermines judicial independence, but the very composition of the Polish court. The Commission needs to carefully consider what exactly it aims to achieve before the Court of Justice and what compliance with a possible Court ruling would eventually look like.

Another possibility to be considered is whether the reforms of the National Council of the Judiciary could also be targeted via Article 258 TFEU. As the Court of Justice had made clear in its A.B. decision on a preliminary reference of the Polish Supreme Administrative Court,Footnote ¹¹⁰ the amendments to the Council of the Judiciary system create broad concerns for the entire Polish judicial independence structure, due to the Council’s role in the appointment of judges. Once again, such an action would arguably be more difficult than the previous ones, both in terms of its precise framing and also because it would raise difficult questions of the standards to be applied when assessing the independence of national councils of the judiciary. There is not much uniformity at the European level on the matter, in terms of composition, function, and even the very existence of similar organs in the member states.Footnote ¹¹¹ In any event, despite the possible difficulties in framing these new actions, Article 19 TEU continues to be the most promising way to fight the Polish attempt to undermine judicial independence.

Of course, the situation of the Hungarian judiciary – or of any other member state – could also be scrutinised under Article 19 TEU: the standards developed in the Polish cases (but also the MalteseFootnote ¹¹² and RomanianFootnote ¹¹³ ones) are not country-specific, but applicable throughout the Union. The difficulty in Hungary seems to be that changes were entrenched several years ago, and unless new reforms further undermining judicial independence were to be adopted,Footnote ¹¹⁴ it is much more difficult to precisely frame an Article 258 action. In other words, the new line of Article 19 TEU cases is a good platform for tackling new measures reducing judicial independence; it remains to be seen whether it offers adequate responses also for cases in which negative changes to the judicial system have already been entrenched in the domestic constitutional order, like in Hungary, but possibly also in the case of the Polish Constitutional Tribunal.

The Hungarian scenario offers then further opportunities for advancing the line of infringement cases based on the EU Charter of Fundamental Rights. As noted above, the Charter is applicable in infringement actions whenever the Commission can show that the member state is acting within the scope of EU law. In this respect, the Commission could follow a ‘procedural’ approach, such as the one suggested by Dawson, relying in turn on the work of Ely and Habermas,Footnote ¹¹⁵ and focus especially on those key areas that serve to ensure political debate and democratic contestation. The Commission could thus target measures that undermine those fundamental rights that guarantee, in a broad sense, equal access to the public debate and to the political process,Footnote ¹¹⁶ such as freedom of expression, freedom of information, freedom of association, or the protection of minorities. The infringement action in the NGOs case is a positive exampleFootnote ¹¹⁷ and may inspire similar future actions: by protecting freedom of association, the Commission and the EU as a whole may also protect and promote individual and collective access to the public debate, and it is particularly crucial that civil society organisations are free to receive support from abroad when national (funding) channels may no longer be available.

In that sense, an important step was taken in June 2021, when the Commission launched what is, to my knowledge, the first infringement action against Hungary that relates to question of media pluralism and freedom of information. The action concentrates in particular on the decision of the controversialFootnote ¹¹⁸ Hungarian Media Council to reject the application of a radio – Klubradio – for the use of the national radio spectrum. In its infringement action, the Commission relies on the European Electronic Communications Code (Directive (EU) 2018/1972) and the principles of non-discrimination and proportionality therein contained. Regrettably, the Commission did not explicitly mention the Charter in the infringement action, but this remains an important step, even if it concerns a seemingly narrow issue. Fighting restrictions to media pluralism and freedom of information is certainly crucial in the EU’s battle to protect democracy and human rights,Footnote ¹¹⁹ but the response has been limited so far, also due to the limited competences of the EU on the subject. Yet it is crucial that the fundamental rights and democratic dimension of such cases is made more evident, in order to avoid the shortcomings of the earlier actions against Hungary and ensure that national authorities are not left free to engage in creative compliance.

The infringement action relating to Klubradio can also be seen in the context of a broader attempt of the Commission to launch values-related infringement action. Even without always mentioning the Charter, in June and July 2021, the Commission started a series of important infringement cases linked to fundamental values and fundamental rights questions, including on the asylum procedure directive in Hungary, on non-discrimination on the basis of racial or ethnic origin in the field of education in Hungary, but also on citizens’ electoral rights in Czech Republic and Poland.Footnote ¹²⁰ Perhaps the most remarkable example, however, is the July decision to open infringement actions against Hungary and Poland on their anti-LGBTIQ+ legislation. The action against Poland is not based on fundamental rights arguments, though, but on a breach of the principle of sincere cooperation, and the Commission targets in particular the lack of response from Polish authorities on its requests for clarification relating to the ‘LGBT-ideology free zones’ resolutions adopted by some local authorities in the country. The two actions against Hungary, in contrast, raise explicit fundamental rights’ arguments based on the Charter. In the first action, which concentrates on the measures limiting minors’ access to content that portrays homosexuality, the Commission relies on a variety of primary and secondary law norms (from free movement provisions to the Audiovisual Media Services Directive and the e-Commerce Directive), but those claims mostly serve an instrumental purpose, namely to show that the national measures fall within the scope of EU law and therefore that the Charter is applicable. The last claim raised by the Commission is actually the central one: those measures infringe human dignity (Article 1 of the Charter), freedom of expression and information (Article 11), the right to respect of private life (Article 7) and the right to non-discrimination (Article 21). The reasoned opinion issued in December 2021Footnote ¹²¹ confirms the fundamental rights’ arguments developed in the letter of formal notice, but, as noted earlier, at least in the press release the Commission has made no further explicit reference to Article 2 TEU.

As a final remark, concentrating only on the substance of infringement actions would not be enough. The procedural side is equally important, and further action is needed on that front as well. Three elements can be briefly mentioned. First, here in full agreement with Scheppele and her co-authors,Footnote ¹²² different infringement actions on connected issues (e.g., restrictions to free movement and freedom of association in Hungary) could be brought together in a single procedure, though not based on Article 2 TEU, but on other norms of EU primary (including the Charter) or secondary law, and proving that the national measures at stake fall within the scope of EU law. Second, the timing of the action is crucial in values-based infringement,Footnote ¹²³ as the experience with the Hungarian infringement has once more shown: both in the NGO and in the CEU cases, the final ruling of the Court of Justice came too late, i.e. after the government had already achieved its aims. Whenever possible, therefore, the Commission should ask for accelerated proceedings and for interim orders.Footnote ¹²⁴ Third, the Commission must always be active in the follow-up phase. Even after a positive ruling under Article 258 TFEU (or a positive interim order), the job is not done: the Commission has the responsibility to constantly monitor the situation at the domestic level and eventually bring a member state before the Court under Article 260 TFEU if implementation is not satisfactory,Footnote ¹²⁵ and if pecuniary sanctions are imposed, then materially recover the amounts to be paid by the member state.Footnote ¹²⁶ The Hungarian NGOs judgment is an important test: after the Commission filed its letter of formal notice ex Article 260 TFEU, Hungary finally amended the Transparency law, but civil society has signalled concerns with the new system, as noted earlier. The Commission, therefore, has the key responsibility to assess whether the implemented reforms can effectively ensure compliance with the Charter rights that Hungary had breached with its first amendments to the system.