Hungary v European Parliament.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:426
• Date: 03 June 2021
• Docket Number: C-650/18
• Celex Number: 62018CJ0650

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

3 June 2021 (*)

(Action for annulment – Article 7(1) TEU – European Parliament resolution on a proposal calling on the Council of the European Union to determine the existence of a clear risk of a serious breach of the values on which the European Union is founded – Articles 263 and 269 TFEU – Jurisdiction of the Court – Admissibility of the appeal – Challengeable act – Article 354 TFEU – Rules for counting votes in the Parliament – Rules of Procedure of the Parliament – Rule 178(3) – Concept of ‘votes cast’ – Abstentions – Principles of legal certainty, equal treatment, democracy and sincere cooperation)

In Case C‑650/18,

ACTION for annulment under Article 263 TFEU, brought on 17 October 2018,

Hungary, represented initially by M.Z. Fehér, G. Tornyai and Zs. Wagner, and subsequently by M.Z. Fehér, acting as Agents,

applicant,

supported by:

Republic of Poland, represented by B. Majczyna, acting as Agent,

intervener,

v

European Parliament, represented by F. Drexler, N. Görlitz and T. Lukácsi, acting as Agents,

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan, L. Bay Larsen and A. Kumin, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, D. Šváby, S. Rodin, K. Jürimäe, C. Lycourgos (Rapporteur) and I. Jarukaitis, Judges,

Advocate General: M. Bobek,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 29 June 2020,

after hearing the Opinion of the Advocate General at the sitting on 3 December 2020,

gives the following

Judgment

1 By its application, Hungary seeks the annulment of the European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) [TEU], the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)) (OJ 2019 C 433, p. 66, ‘the contested resolution’).

Legal context

The procedure under Article 7 TEU

2 Article 7 TEU provides as follows:

‘1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 [TFEU].’

3 Article 354 TFEU provides as follows:

‘For the purposes of Article 7 [TEU] on the suspension of certain rights resulting from Union membership, the member of the European Council or of the Council representing the Member State in question shall not take part in the vote and the Member State in question shall not be counted in the calculation of the one third or four fifths of Member States referred to in paragraphs 1 and 2 of that Article. Abstentions by members present in person or represented shall not prevent the adoption of decisions referred to in paragraph 2 of that Article.

For the adoption of the decisions referred to in paragraphs 3 and 4 of Article 7 [TEU], a qualified majority shall be defined in accordance with Article 238(3)(b) of this Treaty.

Where, following a decision to suspend voting rights adopted pursuant to paragraph 3 of Article 7 [TEU], the Council acts by a qualified majority on the basis of a provision of the Treaties, that qualified majority shall be defined in accordance with Article 238(3)(b) of this Treaty, or, where the Council acts on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, in accordance with Article 238(3)(a).

For the purposes of Article 7 [TEU], the European Parliament shall act by a two-thirds majority of the votes cast, representing the majority of its component Members.’

Judicial review

4 The first and sixth paragraphs of Article 263 TFEU are worded as follows:

‘The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

…

The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.’

5 In accordance with Article 269 TFEU:

‘The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 [TEU] solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.’

Protocol (No 24)

6 The sole article of Protocol (No 24) on asylum for nationals of Member States of the European Union (OJ 2010 C 83, p. 305, ‘Protocol (No 24)’) provides as follows:

‘Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:

…

(b) if the procedure referred to in Article 7(1) [TEU] has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national;

…’

Rules of Procedure of the European Parliament

7 Rule 178(3) of the Rules of Procedure of the European Parliament, in the version applicable at the time of the adoption of the contested resolution (‘the Rules of Procedure’) states as follows:

‘In calculating whether a text has been adopted or rejected, account shall be taken only of votes cast for and against, except in those cases for which the Treaties lay down a specific majority.’

8 Rule 226(1) of the Rules of Procedure provides:

‘If doubt arises over the application or interpretation of these Rules of Procedure, the President may refer the matter to the committee responsible for examination.

Committee Chairs may do so when such a doubt arises in the course of the committee's work and is related to it.’

9 It follows from point 8 of Section XVIII of Annex V to the Rules of Procedure that the Parliament’s Committee on Constitutional Affairs is responsible for the interpretation of those rules.

Background to the dispute

10 By a resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)) (OJ 2018 C 307, p. 75), the Parliament instructed its Committee on Civil Liberties, Justice and Home Affairs to draw up a special report on that Member State with a view to holding a plenary vote on a reasoned proposal calling on the Council of the European Union to act pursuant to Article 7(1) TEU. That report was adopted on 25 June 2018.

11 In a letter of 10 September 2018, Hungary’s Permanent Representative to the European Union notified the Parliament’s Secretary General of the Hungarian Government’s position that abstentions should be taken into account in the vote on the Parliament’s contested resolution, in accordance with Article 354 TFEU and Rule 178(3) of the Rules of Procedure, and asked that the Members of the Parliament be informed accordingly.

12 On 10 September 2018, the Parliament’s Deputy Secretary General informed Members of the European Parliament (‘MEPs’) via email that, in the context of the calculation of the votes cast, only the votes cast in favour and those cast against the adoption of the resolution...