After operationalising the worth of the Rule of Regulation (RoL), the EU is popping to democracy, via each legislative and judicial developments (see additionally right here). Case C-829/24, referring to an infringement process towards Hungary for adopting the Regulation on the Safety of Nationwide Sovereignty, have to be thought of on this context. As Advocate Basic (AG) Kokott highlights in her Opinion of 12 February 2026, this Case revolves round ‘the elemental and really topical query of how and to what extent a democratic society might legitimately defend itself towards the actions of international actors exerting inappropriate or manipulative affect, similar to disinformation, together with by the use of monetary assist, on home democratic decision-making processes, together with nationwide elections’ (para. 2).
She emphasises that this goal, which MS are entitled to pursue as a ‘sovereign proper’ (para. 100), can also be promoted by EU establishments and iteratively refers to examples on this regard (see e.g. para. 116 and footnotes). As a part of the query of the position and legitimacy of the Court docket of Justice (ECJ) to take care of democratic backsliding in Hungary, this Case raises the next dilemma: How can the ECJ management the validity of a nationwide (intolerant) Regulation grounded on the exact same goals recognised as official by EU establishments?
We argue that AG Kokotts’ Opinion provides a cautious but convincing evaluation of the Regulation from a democratic standpoint. Though involving challenges of appreciable significance to democracy — as evidenced by the quite a few interventions in assist of the Fee (from 15 MS and the European Parliament) — the infringement process isn’t framed across the worth of democracy. The Opinion due to this fact reveals that the Case might not be the best automobile for deepening the operationalisation of this worth, however provides a helpful alternative to develop the idea of the ‘chilling impact’ within the ECJ’s case regulation.
Background of the case
The Hungarian Defence of Nationwide Sovereignty Invoice was handed at breakneck velocity: it entered into pressure on 22 December 2023, just one month after it was submitted by a MP from the ruling Fidész celebration. It establishes the Sovereignty Safety Workplace (SPO) to research any exercise which will affect democratic processes and the need of voters, with a view to defending nationwide sovereignty. The broad and indeterminate scope of the time period ‘exercise’, enshrined in Article 3 of the Regulation, is essential to the Case, as we will see (see already paras. 4 and 58-59). For it raised quite a few challenges to democracy at giant (see e.g. the Venice Fee’s Opinion) and democracy within the EU (see right here and right here), the Regulation referred to as for a robust and quick response.
The European Fee’s stance was extra nuanced. On the one hand, and regardless of being criticised for its slowliness in conducting the preliminary phases of the infringement process, it introduced the Case earlier than the ECJ in December 2024 and efficiently submitted it to the expedited process (Order of the President of the Court docket of 12 February 2025).
Alternatively, the Fee failed to understand the democratic challenges raised by the Hungarian Regulation. Normally, its lack of firmness has been criticised as a permissive response to Hungary’s democratic backsliding, as illustrated by its dealing with of the RoL conditionality mechanism with its resolution to raise the suspension of funds being challenged by the European Parliament (C-225/24). AG Ćapeta’s Opinion considers the Fee lacked transparency, stressing a proof was owed ‘not solely to Hungary, however to the EU citizenry at giant’ (para. 68).
Within the current case, it didn’t ask for interim measures as requested by civil society and the European Parliament. In the meantime, Fidész continued on the highway to eroding liberal democracy: SPO started its actions, spreading a dangerous local weather in Hungarian’s democratic area and the Hungarian Constitutional Court docket confirmed the regulation’s constitutionality. A member of Hungary’s ruling Fidész celebration additionally submitted, on 13 Could 2025, a brand new invoice, ‘Transparency of Public Life’. A joint letter from 326 civil society organisations recommend it ‘would supply the federal government with the ultimate instruments to successfully and fully silence the remaining unbiased voices in Hungary’ (see additionally right here). The joint letter additional underlines that the SPO is essential to the brand new invoice, asking for interim measures to droop its actions earlier than irreparable hurt happens (on this case, ‘the efficient paralysis of civil society organisations, unbiased media and dissenting voices’).
On prime of that, the Fee didn’t body the Case round democracy. After having established considerations for the EU values of Article 2 TEU and democracy, together with Articles 10 and 14(3) TEU and Article 22 TFEU, in its letter of formal discover, it kept away from taking motion underneath these provisions within the last infringement introduced earlier than the Court docket. As a substitute, the Fee invokes a number of violations of EU Regulation, together with the Providers Directive and the Constitution.
With all this background in thoughts, one can surprise if the ECJ’s ruling will nonetheless be capable to sort out the democratic considerations raised by the Hungarian Regulation and SPO’s actions. In her Opinion delivered on 12 February 2026, AG Kokott offers some solutions on this regard.
The proper case for concretising the worth of democracy?
Since ASJP of 2018, the ECJ counters RoL backsliding in Poland and Hungary by counting on a value-principle-obligation logic, systematised within the Conditionality judgments of 2022 (C-156/21 and C-157/21). It operates as follows: the values of Article 2 TEU are given concrete expression in ideas that indicate obligations for the MS. This logic applies to Article 19 TEU for the RoL, and has been prolonged to the precept of consultant democracy enshrined in Article 10 TEU (Junqueras, 2019).
Three seminal rulings — Fee v Czech Republic and Fee v Poland in 2024 and Fee v Malta in 2025 — demonstrated the ECJ’s willingness to face as a guardian of democracy at nationwide degree via ‘concretisation’ (see e.g. right here). These circumstances nevertheless apply to European elections and the effectiveness of EU Residents’ political rights. Voices have emerged calling for a transfer past this method and for the operationalisation of Article 2 TEU to allow extra direct management over nationwide democracy (see Spieker). They depend on the concept that though Article 10 TEU refers to democracy at Union degree, EU’s democracy can not perform if MS’ democratic system fails.
If it was to observe this highway, the ECJ would wish a case. The so-called ‘Lex Tusk’ adopted by Poland in April-Could 2023 represented a very good alternative, for it might have led to the stigmatisation and elimination of political opponents. In June 2023, the Fee opened an infringement process contemplating it unduly interfered with the democratic course of, and invoking, amongst others, the violation of Articles 2 and 10 TEU. Nevertheless, after October’s 2023 parliamentary elections received by the centrist pro-European opposition led by Donald Tusk, the ‘Lex-Tusk’ misplaced its effectiveness and makes an attempt had been made to repeal it (see the 2024 and 2025 Rule of Regulation Stories).
The Hungarian Regulation on the Safety of Sovereignty due to this fact appeared as an ideal case to underline the intertwined nature of nationwide and European democracy. The Order of the President of the Court docket, aforementioned, pointed on this route, by affirming that ‘the current case considerations the constitutional relations between the European Union and its Member States within the elementary and delicate space of public and democratic life’ (para. 18).
The issue is the next: the Fee kept away from invoking democratic provisions of the Treaties, turning again from its letter of formal discover’s considerations. By suppressing them in its reasoned opinion, it has ‘definitively dropped its claims that Hungary had infringed the values of the European Union’ (para. 27), states AG Kokott, who accordingly rejects the declare made by the European Parliament and a number of other intervening MS that Hungary nonetheless violated the worth of democracy and the fitting to vote and stand as a candidate (para. 40).
One can argue that within the seminal judgments aforementioned, the infringement of Articles 2 and 10 TEU was not invoked by the Fee, which didn’t stop the ECJ from mobilising them as interpretative instruments. Such obiter dicta, although not main in an infringement of the worth of democracy and its concretisation norm, absolutely participates within the operationalisation of Article 2 TEU. Within the current case, nevertheless, the Fee doesn’t depend on any provision that may current a ‘comparable hyperlink’ (Kokott, para. 42) with the worth of democracy, having dropped its claims on Articles 10 and 14(3) TEU and Article 22 TFEU.
Admittedly, the Fee invokes a violation of freedom of expression enshrined in Article 11 of the Constitution, which has repeatedly been linked to Article 2 TEU by the ECJ, as ‘as a necessary basis of a pluralist, democratic society reflecting the values on which the Union relies’ (see e.g. Actual Madrid / Le Monde, para. 49). Nonetheless, the applicability of the Constitution is circumscribed and contingent, on this occasion, on the infringement of quite a few provisions pertaining to freedom of motion (see paras. 177-178). By revolving round these violations of elementary freedoms and elementary rights, Case C-829/24 remembers the pending Case C-769/22 Fee v Hungary, the place the Fee invokes an unprecedented violation of Article 2 TEU as a standalone provision. Former-judge to the ECJ Rossi means that ‘In sure circumstances (…) Article 2 TEU can represent, throughout the scope of the Treaties, an autonomous plea flanked by different provisions’ (emphasis added). Such an operationalisation of EU values — neither autonomous nor concretised — might have been advised by AG Kokott to totally seize the democratic dimension within the current Case if the Fee had maintained Article 2 TEU. As a substitute, she provides another: to counter the ‘chilling impact’ of the Hungarian Regulation (as advised right here).
A welcome use of the idea of ‘chilling impact’
Laurent Pech strongly advocates for using this idea to guard EU values, because it captures ‘measures which goal to pre-emptively dissuade pure and authorized individuals from exercising their rights by making a local weather of worry or a local weather of mistrust’ primarily based on their ‘obscure content material, mixed results and/or arbitrary software’. Developed within the ECHR’s case regulation on freedom of expression, the idea of ‘chilling impact’ has been used implicitly by the ECJ underneath various names of ‘deterrent’ or ‘dissuasive’ impact, specifically with respect to the EU’s 4 freedoms. It is just lately that it was relied upon for elementary rights enshrined within the Constitution (Transparency of Associations on freedom of affiliation and Actual Madrid v Le Monde on freedom of expression).
In AG Kokott’s Opinion, ‘chilling’ and ‘deterrent’ impact play a job in assessing a restriction to the Providers Directive, freedom of affiliation (see specifically para. 197) and freedom of expression (see additionally right here). The idea contributes to AG Kokott’s very concrete evaluation of the notion of ‘necessities’ of the regulation throughout the that means of the Providers Directives (see paras. 76-81). A mixed studying of Articles 7, 8, 11 and 12 of the Regulation reveals that the SPO’s powers of investigation and disclosure indicate corresponding obligations to cooperate for the individuals and organisations offering or benefiting from providers that quantity to the quite a few actions lined by the Regulation (Article 3, see e.g. para. 70). Due to this fact, the obligation of cooperation constitutes a requirement despite the fact that non-compliance doesn’t instantly set off authorized sanctions, as a result of these mechanisms (additionally certified as necessities) make it successfully binding and probably deterring (see specifically para. 80, ‘effet dissuasif’ in French). Below the identical logic (para. 180), AG Kokott considers that the obligation to cooperate and different penalties of an SPO’s investigation quantity to a restriction to freedom of expression, since they’ve a ‘chilling impact’ and carry the ‘danger of self-censorship’ on journalists, publishers and press organisations (paras. 188-190).
As underlined by Pech, a outstanding benefit of this idea is to lighten the burden of proof, the ‘mere prospect’ of a dissuasive impact, not directly or probably, resulting in a restriction of the elemental freedom or elementary proper. If the chilling impact materialises (see right here and right here), it will probably in flip reinforce the case. For instance, in October 2024, SPO produced two experiences on Transparency Worldwide Hungary which can be taken into consideration by AG Kokott to concretely reveal the destructive affect of the Regulation (see e.g. para. 198).
The idea additionally has its drawbacks. By counting on the vagueness and danger of arbitrariness of the Regulation to seek out limitations to the elemental rights at stake, AG Kokott restricts the proportionality evaluation underneath Article 52(1) CFR to its first step: the limitation ‘have to be offered for by regulation’. Since this criterion is interpreted as making the limitation clear and predictable to keep away from the chance of arbitrariness (para. 213), it is just logical that the vagueness of the notion of ‘actions’ (Article 3) and the massive powers of the SPO to research on these actions straight stop any justification of the Regulation (para. 214). Not pursuing the evaluation additional produces two fairly contradictory results: it offers the sensation that the Regulation can’t be justified in any respect, and that there is no such thing as a have to attempt to reserve it or, a contrario, that, if it wasn’t for its vagueness, it might have been justified.
Consequently, AG Kokott carries out a radical evaluation of the Regulation’s proportionality regarding the restriction to freedom to offer providers (paras 107-126). Had this evaluation been performed from a elementary rights perspective, it might have addressed extra frontally the democratic challenges raised by the Regulation concerning its goal of defending inner democratic processes from any illegitimate international interference, an goal recognised and shared by the EU establishments.
Conclusion
Case C-829/24 might present a possibility to additional articulate the intertwined nature of European and nationwide democracy. By taking the lens of freedom of motion and the Constitution, AG Kokott’s reasoning absolutely dangers obscuring the underlying constitutional points, as famous by Spieker in his evaluation of Transparency of Associations.
But, as voices emerge to name on cautiousness when coping with values (see right here and right here), the ECJ can depend on the idea of chilling impact and steadily assess the affect of the Regulation on democracy nonetheless. This method might develop right into a coherent and systemic line of case regulation, as chilling impact might also apply to the Hungarian ‘Transparency of Public Life’ invoice, intently linked to the Regulation discovered incompatible with EU regulation in Transparency of Associations, ought to infringement proceedings be initiated.
Felicie Remlinger is a PhD candidate at Paris-Panthéon-Assas College the place she teaches EU Institutionnal and Constitutional Regulation.
