31st May 2023

EU court tells Hungary to allow judges to ask for guidance

  • The European Court of Justice said "EU law precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling" (Photo:
Listen to article

Domestic judges in EU countries cannot be forbidden from seeking guidance from the EU's top court, or be disciplined for doing so, the European Court of Justice (ECJ) ruled on Tuesday (23 November).

The ECJ ruled in the case of a Hungarian judge, Csaba Vasvári, who in 2019 asked for a preliminary ruling from the EU top court on the country's judicial independence.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

His request was challenged by Hungary's prosecutor general, Péter Polt, a close ally of the country's nationalist prime minister Viktor Orbán.

After Polt's appeal, Hungary's Supreme Court ruled that the judge's request was unlawful. Disciplinary proceedings were launched against the judge, but later halted.

In its ruling, the ECJ said the EU treaty "precludes a national supreme court from declaring, […] that a request for a preliminary ruling submitted by a lower court is unlawful".

"The principle of the primacy of EU law requires the lower court to disregard the decision of the supreme court of the member state concerned," it added.

The court also said that "EU law precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling".

Interestingly, the court did not make a clear stance as to the country's judicial independence following Vasvári's request - which is a separate case and was not dealt with in the Tuesday ruling.

In 2018, another Hungarian judge, Gabriella Szabó, asked for a preliminary ruling at the EU's top court that at the time went to the heart of Orbán's migration policy.

Earlier this year, her mandate as a judge was not renewed, and she claimed it was because of her ECJ request.

Tuesday's ruling is one of many cases in which the EU's top court has recently found against Hungary, and Poland, the other EU member state that has been at loggerheads with the bloc and its other members over rule-of-law issues.

Democratic backsliding

Poland and Hungary, along with Slovenia are the three EU countries, where there has been the greatest declines in democracy, according to a report published on Monday (22 November) by the International Institute for Democracy and Electoral Assistance (IDEA), a Stockholm-based intergovernmental organisation.

Serbia, whose bid to join the EU is staunchly supported by Budapest, has also seen a deep regression, according to the report.

"The 2010s were a decade of missed opportunity for democratic consolidation" in Europe, the IDEA study notes, adding that democratic deficits intensified in Poland and Hungary in 2020.

"These declines have created a deep and dangerous cleavage in the EU's internal fundamental consensus on liberal democratic values, and highlighted the lack of effective tools to promptly address democratic backsliding within the EU," the report concludes.

However, the "formal institutions of democracy in Europe, such as elections, parliaments, and political parties, were resilient in the face of the grave challenges presented by the pandemic," the study said.

"Hungary is a very low-performing democracy, with all the formal structures in place of a democracy that tick all the boxes, but it lacks the elements that allow the checks and balances to work," Sam van der Staak, the head of International IDEA's Europe programme told EUobserver when asked if Hungary still qualified as a democracy.

Van der Staak said said he was optimistic that the EU can grow out of the rule-of-law and democracy crisis, and further contagion beyond Hungary, Poland, and Slovenia will not happen as the EU leaders had now woken up to the issue.

One of the key lessons of recent years is that democracy can be reversed, van der Staak noted.

"Democracies can be destroyed from the inside, they don't protect themselves, they need maintenance," van der Staak said.

Van der Staak said polarisation was the biggest threat to democracies, and Covid-19 had further eroded citizens' trust in governments and institutions.

He added that delivering for citizens on the issues that concerned them, educating citizens about what democracy can do for them, and opening up the political discussions to include them were some of the tools to help democracies.

Damaging pandemic

The IDEA study notes that worryingly the US has also seen concerning democratic decline.

The global trends are concerning. 2020 was the worst on record, in terms of the number of countries affected by deepening autocratisation.

"The number of countries undergoing 'democratic backsliding' has never been as high," the study said, referring to the regressive turn in areas including checks on government and judicial independence, as well as media freedom and human rights.

IDEA said 70 per cent of the global population now live either in non-democratic regimes or in democratically regressive countries.

"The pandemic thus has had a particularly damaging effect on non-democratic countries, further closing their already reduced civic space," it said.

"Democratically-elected governments, including established democracies, are increasingly adopting authoritarian tactics. This democratic backsliding has often enjoyed significant popular support," IDEA said.


EU Commission letters to Poland, Hungary: too little, too late?

The EU Commission has made a first move in the battle that could result in financial sanctions against Hungary and Poland over rule-of-law issues. However, this initial step has irritated those arguing for quicker action.

EU top court slams Poland and Hungary again

In a joint letter, five European Parliament groups - from centre-right to far-left - called on EU Commission president Ursula von der Leyen to defend EU law and take all necessary measures.

Hungarian election will need scrutiny 'at all levels'

The move came after 20 civil society organisations and think tanks, 62 MEPs from 19 countries, and five different political groups wrote separate letters demanding a fully-fledged election observation mission to Hungary.

Latest News

  1. Europe's TV union wooing Lavrov for splashy interview
  2. ECB: eurozone home prices could see 'disorderly' fall
  3. Adapting to Southern Europe's 'new normal' — from droughts to floods
  4. Want to stop forced migration from West Africa? Start by banning bottom trawling
  5. Germany unsure if Orbán fit to be 'EU president'
  6. EU Parliament chief given report on MEP abuse 30 weeks before sanction
  7. EU clashes over protection of workers exposed to asbestos
  8. EU to blacklist nine Russians over jailing of dissident

Stakeholders' Highlights

  1. International Sustainable Finance CentreJoin CEE Sustainable Finance Summit, 15 – 19 May 2023, high-level event for finance & business
  2. ICLEISeven actionable measures to make food procurement in Europe more sustainable
  3. World BankWorld Bank Report Highlights Role of Human Development for a Successful Green Transition in Europe
  4. Nordic Council of MinistersNordic summit to step up the fight against food loss and waste
  5. Nordic Council of MinistersThink-tank: Strengthen co-operation around tech giants’ influence in the Nordics
  6. EFBWWEFBWW calls for the EC to stop exploitation in subcontracting chains

Stakeholders' Highlights

  1. InformaConnecting Expert Industry-Leaders, Top Suppliers, and Inquiring Buyers all in one space - visit Battery Show Europe.
  2. EFBWWEFBWW and FIEC do not agree to any exemptions to mandatory prior notifications in construction
  3. Nordic Council of MinistersNordic and Baltic ways to prevent gender-based violence
  4. Nordic Council of MinistersCSW67: Economic gender equality now! Nordic ways to close the pension gap
  5. Nordic Council of MinistersCSW67: Pushing back the push-back - Nordic solutions to online gender-based violence
  6. Nordic Council of MinistersCSW67: The Nordics are ready to push for gender equality

Join EUobserver

Support quality EU news

Join us