Protecting fundamental rights through the infringement procedure: Advocate General’s Opinion in CJEU Case C-769/22 “Commission v. Hungary”

Gonçalo Martins de Matos (Master in Judiciary Law by the University of Minho | Member of the Editorial Support of this blog)

There is a very relevant case regarding the defence of fundamental rights being processed at the Court of Justice of the European Union (CJEU): an infringement procedure moved against Hungary by the European Commission on the grounds of breaching Article 2 of the Treaty on European Union (TEU). It is a relevant case because it is the first case to frame abuses of fundamental rights by Hungarian authorities as an overarching systemic problem, instead of the usual sectorial and solitary breaches. This case might open up the infringement procedure to a valuable role of a fundamental rights protection mechanism,[1] as it has been defended by legal scholars and practitioners. And that role is very important in the context of rule of law backsliding and recent democratic erosion.

Fundamental rights are of elementary importance in the European Union (EU)’s legal order. As a matter of fact, the EU is axiologically based on a set of values ​​common to its Member States, namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, enshrined in Article 2 TEU and self-imposed as an objective of the Union itself, according to Article 3(1) TEU. It is this conception of the EU as a community of values ​​that contributes to the construction of the “society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail” referred to in the second part of Article 2 TEU. More than a community of values, the EU creates law to which its legal and institutional framework, its Member States and its citizens are bound, resulting in the notion that the Union submits to the principles that itself created. From this notion we conclude that the EU conceives itself as a Union subjected to the Law, in which the exercise of European public power is linked to EU law. We are in presence of the principle of the rule of law translated into the logic of the EU: the principle of the Union of Law, which functions as a limit to the actions of European institutions and a guarantee of the rights of individuals attributed by European provisions.

Being a Union of Law, the EU establishes a principle of legality, in which all legal relationships established within the framework of the Union fall under the control of independent judicial bodies. Furthermore, by recognising that the Treaties also established a complete system of remedies and procedures designed to entrust the CJEU with the review of the legality of the acts of the institutions, the EU also ensures the guarantee of effective judicial protection. The principle of effective judicial protection implies that the European legal order provides means to protect the fundamental rights guaranteed by it. Although not specifically created to pursue that goal, the action for infringement is a jurisdictional procedure that aims at assessing the compliance of a Member State’s behaviour with EU law. Provided in Articles 258 to 260 of the Treaty on the Functioning of the European Union (TFEU), its function is to, simultaneously, assess Member States’ behaviour regarding the fulfilment of the obligations deriving from the Union law, as well as the correct interpretation of that same law.

In the context of the so-called “rule of law backsliding”,[2] a process defined by the gradual capture of the legal and political systems of the respective States by a party in power, and which has affected some EU Member States, there have been some setbacks in areas that previously seemed protected, such as the rule of law or fundamental rights. The reaction of the European institutions has not been the most expeditious or peremptory, mainly because the Commission’s reactions to rule of law backsliding in, v.g., Hungary or Poland were weak, if not futile, with even the infringement actions bringing about pyrrhic victories, as they found that those States had failed to comply with specific EU rules, but ignored the wider systemic problem. This situation finally saw positive progress when, in 2019, the CJEU handed down Judgement Commission v. Poland,[3] in which the Court “tackled the issue of principle at the heart of the matter: adherence to the Rule of Law via honouring judicial independence and irremovability.”[4]

This brief introduction serves the purpose of highlighting that the CJEU has the potential to play a pivotal role in the defence of fundamental rights. This is because, despite the ceaseless work of the other institutions in preventing and monitoring violations of fundamental rights, only the CJEU’s judgment has the legal force necessary for a firm response to violations of fundamental rights, since it has appeared to be safeguarding EU values. And it is the combination of both means that allows for strong and effective protection of fundamental rights within the EU. Thus, we finally arrive at the case that gives rise to our text: the infringement action brought by the European Commission against Hungary on 19 December 2022.[5] We do not intend to make an exhaustive analysis of the case, only of the part that constitutes the novelty. At issue is the adoption of several rules by the Hungarian government that, stripped of its fictitious concerns, reveal a systemic attack on the fundamental rights of LGBT+ people, insofar as they impose a series of prohibitions and restrictions on gender non-conformity, gender reassignment or the promotion and/or display of homosexuality.

On 5 June 2025, the Opinion of the Advocate General on this case was published. Supporting the arguments invoked by the European Commission, Advocate General Ćapeta invoked the breach of fundamental rights as the issue at heart of Hungary’s infringement, namely the failure to comply with Article 2 TEU. The novelty presented in this Opinion is precisely that Advocate General Ćapeta highlights the breach of Article 2 by the Hungarian state. Firstly, Advocate General Ćapeta inquires on the justiciability of Article 2 TEU, reminding that the CJEU has found on several occasions – including the two conditionality judgments that we have already addressed[6] – that the values of the referred Article are given concrete expression in principles containing legally binding obligations for the Member States, concluding that “certain obligations are indeed imposed on the Member States directly on the basis of Article 2 TEU” and suggesting that the Court “use[s] the opportunity offered by the present case in order to confirm such a reading”,[7] quoted in its own case-law. Seeing that, under Article 258 TFEU, the Court is competent to find that a Member State has failed to fulfil an obligation under the Treaties, Advocate General Ćapeta argues that, given that “Article 2 TEU creates legal obligations for the Member States, enforcement of those obligations through a declaration of infringement in proceedings brought pursuant to Article 258 TFEU is part of the ordinary competences of the Court of Justice under the Treaties.”[8]

After addressing the pros and cons of granting justiciability to Article 2 TEU, Advocate General Ćapeta furthers the argument by establishing that “the criterion that triggers the finding of an infringement of Article 2 TEU is not the quantity or seriousness of the breaches of fundamental rights or other fundamental principles of EU law, but rather the negation of the values of Article 2 TEU by a Member State.”[9] Densifying the systemic approach to breaches of fundamental rights, Advocate General Ćapeta reflects that “an infringement of Article 2 TEU does not occur merely because the other breaches are serious. It is rather the reverse: because the root cause of those breaches is a negation of the values enshrined in Article 2 TEU, they themselves become both serious and systemic”,[10] negatively impacting the functioning of the EU legal order, as it reduces the breaching Member State’s ability to comply with other obligations under EU law. In other words: because Hungary repudiates the values contained within Article 2 TEU, it fails to comply with the specific and sectorial EU secondary law that is mentioned in the Commission’s reference to the Court of Justice.

Following literature on the matter, we have defended this systemic approach to the infringement procedure as a means to defend fundamental rights in the EU.[11] If the Court of Justice accepts – or expands on – these arguments, the paradigm of jurisdictional defence of fundamental rights will see a positive change, as it will be possible to tackle serious breaches more deeply and effectively address the root of rule of law backsliding in EU Member States. This judicial mechanism for the defence of fundamental rights is very much needed to complement the other, non-judiciary means and initiatives to promote societies based on the rule of law in which fundamental rights are respected and enforced. We will be following developments in this case closely. And we hope that the CJEU will soon provide another landmark decision in the construction of a Union in which pluralism, non-discrimination, tolerance, justice, solidarity and equality prevail.

[1] Among others, see Joana Covelo de Abreu, “An approach to today’s EU constitutionality control – understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection”, UNIO – EU Law Journal, v. 3, no. 2 (2019), https://doi.org/10.21814/unio.3.2.9 and Gonçalo Martins de Matos, “A defesa do Estado de Direito na União Europeia e o papel da ação por incumprimento” (Master’s diss., University of Minho, 2023), https://repositorium.sdum.uminho.pt/handle/1822/93740.

[2] On rule of law backsliding, see, among others, Carlos Closa and Dimitry Kochenov, “Part I. The case for EU reinforced oversight in four questions” in Carlos Closa, Dimitry Kochenov and JHH Weiler, EUI Working Paper RSCAS 2014/25: Reinforcing Rule of Law Oversight in the European Union, no. 3 (2014): 7, accessed 5 June 2025, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2404260, and Laurent Pech and Kim Lane Scheppele, “Illiberalism within: rule of law backsliding in the EU”, Cambridge Year-book of European Legal Studies, v. 19 (2017): 7, accessed 5 June 2025, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009280.  

[3] Judgement CJEU European Commission v. Republic of Poland, 24 June 2019, case C-619/18, ECLI:EU:C:2019:531, available at https://eur-lex.europa.eu/legal-content/pt/TXT/?uri=CELEX:62018CJ0619.

[4] Kim Lane Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz, “EU values are Law, after all: enforcing EU values through systemic infringement actions by the European Commission and the Member States of the European Union”, Yearbook of European Law, v. 39, no. 3 (2020): 45, accessed 5 June 2025, https://academic.oup.com/yel/article/doi/10.1093/yel/yeaa012/6064852?login=true.

[5] CJEU, case C-769/22, European Commission v. Hungary, available at https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=;ALL&language=en&num=C-769/22&jur=C.

[6] Gonçalo Martins de Matos, “The relevance of judicial institutions in upholding the rule of law”, Official Blog of UNIO – Thinking and Debating Europe, 19 February 2022, https://officialblogofunio.com/2022/02/19/the-relevance-of-judicial-institutions-in-upholding-the-rule-of-law/.

[7] Opinion of Advocate General Ćapeta on case C-769/22, delivered on 5 June 2025, recital 166.

[8] Opinion of Advocate General Ćapeta on Case C-769/22, delivered on 5 June 2025, recital 193.

[9] Opinion of Advocate General Ćapeta on Case C-769/22, delivered on 5 June 2025, recital 237.

[10] Opinion of Advocate General Ćapeta on Case C-769/22, delivered on 5 June 2025, recital 241.

[11] On this subject, see Kim Lane Scheppele, “What can the European Commission do when Member States violate basic principles of the European Union? The case for systemic infringement actions”, Verfassungsblog, 1 November 2013, accessed 5 June 2025, https://verfassungsblog.de/wp-content/uploads/2013/11/scheppele-systemic-infringement-action-brussels-version.pdf, the above mentioned Scheppele, Kochenov and Grabowska-Moroz, “EU values”, and our own Gonçalo Martins de Matos, “What is the role of the infringement procedure in tackling rule of law backsliding in the EU?”, UNIO – EU Law Journal, v. 8, no. 2 (2023): 26 and following, accessed 5 June 2025, https://doi.org/10.21814/unio.8.2.4697.

Picture credit: by Sora Shimazaki on pexels.com.