Making Infringement Procedures More Effective: A Comment on Commission v. Hungary

von Kim Lane Scheppele

On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground. But it is important nonetheless because it signals serious trouble within the EU. The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.

The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party. The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point.

The case involved András Jóri, Hungary’s former data privacy ombudsman, who was mid-way through a six-year term in 2011 when his office was closed down and a new data protection authority constituted with a different person in charge. The new data protection officer was appointed by the Fidesz-affiliated President of the Republic upon the nomination of Prime Minister Viktor Orbán, the leader of Fidesz. In the course of this constitutional reorganization, Jóri, who had been appointed by a previous parliament, was fired before he could finish his term.

The Commission took Hungary to the ECJ because every Member State is required to have a data protection official whose job it is to ensure that Data Protection Directive 95/46 is enforced within the Member State. This official, according to the Directive, must be able to act with “complete independence” (Art. 28(1)) ...

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