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Published online by Cambridge University Press: 15 October 2021
On June 3, 2021, the Court of Justice of the European Union (CJEU), closely following the Advocate General's Opinion, delivered its Grand Chamber judgment in case C-650/18 Hungary v. European Parliament by dismissing Hungary's action. The ruling confirms that the European Parliament (EP) acted within the procedural boundaries of its powers when initiating, by a two-thirds majority vote of its members, proceedings against Hungary for the situation in the country regarding the rule of law, democracy, and other values on which the European Union (EU) is founded. The ruling comes after the Hungarian government decided to challenge the validity of the resolution of the European Parliament of September 12, 2018, which triggered the proceedings foreseen in the event of a clear risk of serious breaches of the foundational values of the EU, including the rule of law, pursuant to Article 7 of the Treaty on European Union (TEU).
1 Case C-650/18, Hungary v. European Parliament [2021] ECLI:EU:C:2021:426 [hereinafter Judgment].
2 Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, Eur. Parl. Doc. 2017/2131(INL).
3 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1.
4 Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts, Mar. 10, 2001, 2001 O.J. (C 80) 1.
5 See, e.g., Kim Lane Scheppele and Laurent Pech, Is Article 7 Really the EU's “Nuclear Option”?, Verfassungsblog (Mar. 6, 2018), https://verfassungsblog.de/is-article-7-really-the-eus-nuclear-option; Endre Orbán, Article 7 TEU is a Nuclear Bomb – with all its Consequences? 57 Hungarian J. Legal Stud. 119 (2016).
6 For concise commentaries on the procedure under Article 7 TEU, see Dimitry Kochenov, Article 7, in The EU Treaties and the Charter of Fundamental Rights: A Commentary 88–98 (Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin eds., 2019); Dimitry Kochenov, Article 7: A Commentary on a Much Talked-About ‘Dead’ Provision, in Defending Checks and Balances in EU Member States. Taking Stock of Europe's Actions 128–154 (Armin von Bogdandy et al. eds., 2021).
7 Resolution of 17 May 2017 on the situation in Hungary, Eur. Parl. Doc. 2017/2656(RSP).
8 Report A8-0250/2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, Eur. Parl. Doc. 2017/2131(INL).
9 Article 269 TFEU subjects the possibility of bringing an action for annulment against acts adopted by the European Council or the Council of the EU under Article 7 TEU to stricter conditions then the general regime pursuant to Article 263 TFEU.
10 Article 354 TFEU, last paragraph: “For the purposes of Article 7 of the Treaty on European Union, the European Parliament shall act by a two-thirds majority of the votes cast, representing the majority of its component Members.”
11 Judgment, supra note 1, ¶ 33.
12 Protocol (No. 24) on asylum for nationals of Member States of the European Union, [2010] O.J. (C83) 305.
13 Judgment, supra note 1, ¶ 40.
14 Id. ¶ 45.
15 Id. ¶¶ 46–48.
16 Id. ¶¶ 83–84.
17 Id. ¶ 88.
18 Id. ¶ 87.
19 Article 10 TEU states that the functioning of the EU is founded on representative democracy and Article 20 of the Charter of Fundamental Rights of the EU (2012 O.J. (C 326) 391) enshrines the principle of equal treatment.
20 Judgment, supra note 1, ¶¶ 97–100.
21 See, e.g., Case C-619/18, European Commission v. Republic of Poland [2019] ECLI:EU:C:2019:531.
22 Alessandra Silveira and Maria Inês Costa, The rule of law and the defense of citizens against any power: on the case C-650/18 Hungary v European Parliament, Unio (June 4, 2021), https://officialblogofunio.com/2021/06/04/the-rule-of-law-and-the-defense-of-citizens-against-any-power-on-the-case-c%E2%80%91650-18-hungary-v-european-parliament.
23 Case 294/83, Parti écologiste "Les Verts" v. European Parliament [1986] ECLI:EU:C:1986:166, ¶ 23.
24 Judgment, supra note 1, ¶ 59.
25 Xavier Groussot and Anna Zemskova, Hungary v European Parliament (C-650/18): Enhancement of the Protection of the Rule of Law and Process-Oriented Review: Constitutional Business as Usual?, EU Law Live (June 7, 2021), https://eulawlive.com/op-ed-hungary-v-european-parliament-c-650-18-enhancement-of-the-protection-of-the-rule-of-law-and-process-oriented-review-constitutional-business-as-usual-by-xavier-groussot-a/.
26 That is why invoking Rule 178(3) of the EP's Rules of Procedure by Hungary was irrelevant in the assessment of the CJEU.
27 On this judge-made concept, see e.g., Tamás Molnár, The Concept of Autonomy of EU Law from the Comparative Perspective of International Law and the Legal Systems of Member States, 3 Hungarian Y.B. Int'l L. & Eur. L. 433-459 (2015).
28 Groussot and Zemskova, supra note 25.
29 The very first Article 7 TEU procedure was initiated by the European Commisson against Poland on December 20, 2017 (see COM (2017) 835 final—2017/0360 (APP)).