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Case C-66/18 Comm'n v. Hungary (C.J.E.U.)
Published online by Cambridge University Press: 24 May 2021
Extract
The Court of Justice of the European Union (CJEU) delivered a judgment on October 6, 2020 in case C-66/18 following long deliberations. The case concerned an amendment to the Hungarian law on national higher education (HEA) in 2017, requiring both new and established foreign universities in Hungary (the host state) to prove that they had a physical campus in their home state and, if their host and home states failed to conclude an international treaty on the university's operation in Hungary within a period of six months, they were forced to close and leave the Hungarian market. Of the 24 established foreign university programs in Hungary in 2017, one was particularly affected by the new requirement: an American university operating in Hungary, whose founder was at odds with the Hungarian Government, was forced to stop admitting students.
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References
ENDNOTES
1 Though it did make an exception for new market entrants.
2 Charter of Fundamental Rights of the European Union 2012 O.J. (C 326) 391. In addition, on April 27, 2017, the Parliamentary Assembly of the Council of Europe requested the opinion of the Venice Commission on the HEA amendment. The Venice Commission accepted that the new regulatory framework introduced by the HEA might legitimately be applied to new market entrant foreign universities, but that the law raised serious rule of law concerns. It stated, however, that “introducing more stringent rules without very strong reasons, coupled with strict deadlines and severe legal consequences, to foreign universities which are already established in Hungary and have been lawfully operating there for many years, appears highly problematic from the standpoint of rule of law and fundamental rights principles and guarantees.” See Council of Europe, Hungary—Opinion on Article XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, endorsed by the Venice Commission at its 112th Plenary Session (Venice, 6–7 October 2017), CDL-AD(2017)022-e, ¶ 77.
3 Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services.
4 Case C-66/1'8, Comm'n v. Hungary, ECLI:EU:C:2020:792, ¶¶ 69–71 (Oct. 6, 2020).
5 Id. ¶¶ 82, 84: “to ensure that the Union does not incur any international liability in a situation in which there is a risk of a dispute being brought before the WTO.”
6 Case C‑153/02, Neri, ECLI:EU:C:2003:614, ¶ 39 (Nov. 13, 2003).
7 Case C-38/10, Comm'n v. Portugal, ECLI:EU:C:2012:521, ¶ 26 (Sept. 6, 2012).
8 See, in particular, Case 181/73, Haegeman, EU:C:1974:41, ¶¶ 5–6 (Apr. 30 1974); Case C-366/10, Air Transport Ass'n of America, ECLI:EU:C:2011:864, ¶ 73 (Dec. 21, 2011); and Opinion 1/17, EU–Canada C.E.T. Agreement, ECLI:EU:C:2019:341, ¶ 117 (Apr. 30, 2019).
9 Case 78/18, Comm'n v. Hungary (Transparency of Associations), ECLI:EU:C:2020:476, ¶ 101 (June 18, 2020).
10 The Court also referred to Recommendation 1762 (2006), adopted by the Parliamentary Assembly of the Council of Europe on June 30, 2006, and entitled Academic freedom and university autonomy, according to which academic freedom “also incorporates an institutional and organisational dimension, a link to an organisational structure being an essential prerequisite for teaching and research activities.”
11 Because they can “render uncertain or exclude the very possibility of founding a higher education institution, or of continuing to operate an existing higher education institution, in Hungary” (¶ 233).
12 The amendment (T/15909) was presented by Deputy Prime Minister, Dr. Zsolt Semjén, and is available at https://www.parlament.hu/irom41/15909/15909.pdf.
13 Comm'n v. Hungary, supra note 9 and Case C-286/12, Comm'n v. Hungary, ECLI:EU:C:2012:687 (Nov. 6, 2012) on the compulsory retirement of judges, prosecutors and notaries.
14 See originally in Joined Cases C-21–24/72, International Fruit Company, 1972 E.C.R. 1219, and later restated in Case C-149/96, Portugal v. Council 1999 E.C.R. I–8395.
15 The AG stated in her opinion in paragraph 63: “The Court has already answered that question in the affirmative in Commission v Germany, where it reviewed a national measure in the light of an agreement concluded within the framework of the General Agreement on Tariffs and Trade (GATT).” (citing Case C-61/94, Comm'n v. Germany, ECLI:EU:C:1996:313, ¶ 16 (Sept. 10, 1996)). In paragraph 64 she added: “I consider that the Court was essentially correct in its view in that decision that the considerations on the basis of which a review of EU acts in the light of the WTO Agreement is precluded cannot be applied to infringements of WTO law by Member States. The possibility of bringing infringement proceedings against a Member State does not run counter to the aims and particular character of dispute settlement in the WTO.”
16 Neri, supra note 6.
17 Such as the WTO-law, articles of the TFEU or the Services Directive.
18 Comm'n v Hungary, supra note 9, ¶ 101.
19 See discussion in supra note 10.
20 See supra note 11.