European Commission takes Hungary's Sovereignty Protection Act to European Court of Justice

The European Commission has decided to refer Hungary to the Court of Justice of the European Union because its national legislation on the protection of sovereignty violates EU law, the Commission has announced.

The EU body launched the proceedings in February as it sees the law as violating several provisions of primary and secondary EU law, including:

• EU democratic values;
• the principle of democracy and the right of EU citizens to vote;
• a number of fundamental rights enshrined in the Charter of Fundamental Rights of the European Union (such as the right to the respect of private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom of association, the right to an effective remedy and to a fair trial, the prohibition of self-incrimination and lawyer-client privilege);
• EU legal standards on the protection of personal data;
• and a number of rules applicable to the internal market.

The Hungarian government was first given two months to make amendments or explain itself, but failed to do so, so the next stage followed in May. As Népszava reported on Wednesday, the government still failed to provide convincing answers to the European Commission, which is why the procedure is now being moved to the judicial stage. Justice Commissioner Didier Reynders has recently said that they will not hesitate to move forward if deemed necessary.

This is the law that established the Sovereignty Protection Office, which at the end of June launched a comprehensive investigation against the investigative journalism non-profit Átlátszó and the corruption watchdog Transparency International Hungary. The SPO has also created a list of press outlets, including Telex, which it deemed "pro-war".

Articles critical of the government's handling of the Covid-19 pandemic and raising professional concerns about the Chinese vaccine (imported in large numbers by Hungary), including several published by Telex, were accused of being anti-vaccine and of spreading disinformation.

The SPO had also approached government agencies to request that they regularly provide them with information relating to 'sovereignty protection’, including bank account statements of private individuals. It was later revealed that the Hungarian National Bank (MNB), which was called upon to do this, has no legal authority to do so and does not collect such data at all.

As previously reported, the main concern regarding the Sovereignty Protection Act was that it did not clarify who and on what basis the Sovereignty Protection Office – otherwise endowed with broad powers – was entitled to investigate. In principle, the Office is tasked with investigating "processes indicating foreign interference", but in practice it may inspect anyone at any time, without even having to justify who it is targeting and why. This is one of the reasons why the independent press and NGOs already stigmatized by the government have protested against the law.

In theory, the EU body could have requested interim measures, i.e. it could have asked the ECJ to order that the application of the law be suspended until the ruling. Such lawsuits usually last for a year or two, so in the absence of such an injunction, the law could remain in place for some time without consequences. Moreover, even if the law is found to be in breach of EU law, the European Commission can still request the judges to impose a fine in a separate step.

Answering a question from Szabad Európa on Thursday, the EC's spokesperson in charge, Jördis Ferroli, stressed that there are specific conditions for the interim measure based on case law, but that the situation is being monitored.