Hungarian legislation on protecting national sovereignty infringes the European Union’s Charter of Fundamental Rights as well as the principles of freedom of establishment and freedom to provide services, said the Advocate General at the Court of Justice of the European Union in her Opinion delivered on Thursday 12 February (case C-829/24).
The European Commission has brought an action for failure to fulfil obligations against Hungary, which in December 2023 adopted a law on the protection of national sovereignty establishing a ‘Sovereignty Protection Office’ (see EUROPE 13301/25) on the grounds that this law infringes the European Treaties (Articles 49, 56 and 63 TFEU), the Charter of Fundamental Rights and the ‘GDPR’ regulation (2016/679) governing the protection of personal data.
The ‘Sovereignty Protection Office’ is responsible for identifying organisations or individuals whose activities in the interests of other states or foreign actors may influence democratic processes in Hungary. It has broad powers of assessment and investigation, without any judicial review, and may request any information, including personal data, for transmission to the competent authorities.
In her Opinion, Advocate General Juliane Kokott considers that the provisions of the Hungarian law and the measures that can be adopted on its basis may negatively affect the application of EU law. In addition, the Office’s investigative powers are legally binding and likely to have a restrictive impact on cross-border economic activities.
Ms Kokott acknowledges Hungary’s legitimacy in taking measures to prevent representatives of foreign interests from influencing internal democratic processes or manipulating information, but considers that these measures are not proportionate, thereby infringing several fundamental freedoms (freedom of establishment, freedom to provide services, freedom to receive services) set out in the Services Directive (2006/123).
Furthermore, the Advocate General believes that by subjecting information society service providers to stricter requirements than those laid down in their Member State without informing that country beforehand, Hungary is restricting the free movement of digital services set out in the e-Commerce Directive (2000/31). Similarly, restrictions on activities carried out with the help of foreign support violate the free movement of capital, according to Ms Kokott.
Moreover, the Advocate General is of the opinion that threats associated with the opening of an investigation and the disclosure of its findings in stigmatising reports are likely to lead to self-censorship by the press. Similarly, the duty to cooperate in identifying anonymous sources has an inhibiting effect, she adds, seeing this as interference in the freedom of expression and information guaranteed by the Charter of Fundamental Rights (Article 11).
Lastly, the law authorises the Office to process personal data, without providing for sufficiently clear and precise restrictions proportionate to the general interest objectives pursued. Ms Kokott therefore considers that the disputed law does not comply with the ‘GDPR’ regulation’s provisions (Articles 5, 6, 9 and 10) or with the fundamental rights guaranteed by the Charter (Articles 7 and 8).
See the Opinion of the Advocate General (in French): https://aeur.eu/f/kq1 (Original version in French by Mathieu Bion)