Court: Court of Justice of the European Union

Case: Case C-564/19 IS (Illegality of the order for reference)

Date: 23 November 2021


A first interview between the accused, a Swedish national who did not speak Hungarian, and the investigative authority took place, with the accused supported by a Swedish language interpreter. There was no evidence to prove the interpreter’s competence or that the accused understood the interpreter.

The referring judge felt therefore that there was no ability for the court or lawyer to verify the quality of the interpretation – one where the accused was notified of the suspicions held against him and his rights including the right of defence.

The Court of Justice of the European Union (the “Court”) were therefore asked whether Hungarian law complied with Directive 2010/64 (right of interpretation and translation in criminal proceedings) and Directive 2012/12 (right to information in criminal proceedings). If incompatible, the Court was also asked whether proceedings could continue in the accused absence.

The Supreme Court of Hungary brought disciplinary proceedings against the referring judge and ruled the judge’s request for preliminary ruling to the Court as unlawful. The referring judge made an additional request for a preliminary ruling on these actions.


On the latter action of the Hungarian Supreme Court, the Court found that a national supreme court cannot decide that a request for preliminary ruling, submitted from a lower court, is unlawful. The Court holds exclusive jurisdiction to decide on the admissibility of these requests. Here, primacy of EU law entitles the lower court to ignore the Hungarian Supreme Court’s decision. Moreover, EU law precludes any ability to bring disciplinary proceedings against a national judge on the ground that the individual submitted a request for preliminary ruling.

Member states, under Directive 2010/64, must use specific measures to ensure that interpretations and translations are of a sufficient quality to enable the accused to comprehend the suspicions against them. A register of independent translators and interpreters is one way to achieve this – something Hungary did not hold. In this regard, measures must provide national courts with the tools to know that the interpretation is of sufficient quality – this safeguards the fairness of proceedings and rights of defence.

Finally, where there has been incompatibility with the Directives, above mentioned, meaning that the accused does not understand or has not been informed of the accusations against them, criminal proceedings cannot continue in their absence. This is line with the Directives and Article 48(2) Charter of Fundamental Rights of the European Union.

Court: Court of Justice of the European Union

Case: Advocate General’s (Campos Sánchez-Bordona) Opinion in Joined Cases C-793/19 SpaceNet and C 794/19 Telekom Deutschland, in Case C-140/20 Commissioner of the Garda Síochána and Others and in Joined Cases C-339/20 VD and C-397/20 SR

Date: 18 November 2021


Advocate General, Campos Sánchez-Bordona, handed down his Opinion on a number of cases brought to the Court in relation to retention and access to personal data within the electronic communication sector.


Joined Cases C-793/19 and C-794/19

The general and indiscriminate storage obligation imposed by German legislation covers an array of traffic and location data. Storage of electronic communication data must be targeted due to the associated risks of holding this data. Access to the data also involves a serious interference with the right to privacy and family life and protection of individual’s personal data.

Case C-140/20

In his Opinion, the judgement in Prokuratuur (Conditions for access to electronic communications data) (C-746/18) encompasses the answers to the questions in the present case.

General and indiscriminate retention of traffic and location data is not a general permitted activity. Rather, this is only justified in the interests of national security (which does not include prosecution of offences). Therefore, preventive, general and indiscriminate retention of such data of all subscribers for a duration of two years does not comply with the Directive on privacy and electronic communications. Irish law is therefore not compliant with this European instrument.

In addition, a national court cannot limit in time the effects of a declaration of illegality of domestic legislation that does not comply with EU law.

Joined Cases C-339/20 and C-397/20

Here, proceedings were viewed to relate to where a member state can impose an obligation to retain electronic traffic data in a general and indiscriminate way. As in the above, the case of Prokuratuur (Conditions for access to electronic communications data) (C-746/18) was relevant.

The EU Regulation and Directive on market abuse do not provide an autonomous power to retain data, rather they authorise the accessing of data retained in existing records to competent authorities. This access is only permitted where done in accordance with the Directive on privacy and electronic communications. National legislation providing for retention of traffic data in a general and indiscriminate manner within insider dealing or market manipulation investigations does not comply with EU law. The effects of not complying cannot be limited in time by the national court.

Court: Court of Justice of the European Union

Case: Joined Cases C-748/19 to C-754/19 Criminal proceedings against WB and Others

Date: 16 November 2021


The Regional Court in Warsaw, Poland, identified Polish rules on secondment of judges that enable the Minister of Justice to assign a judge to a higher criminal court (based on a set of criteria not officially known). This decision cannot be judicially reviewed, and the secondment can be brought to an end at any point in time without such termination being subject to criteria existing in law or need to provide a statement of reasons.

The Regional Court therefore asked if these rules are in accordance with EU law, particularly Article 19(1) TEU and if these undermine a presumption of innocence within criminal proceedings (as per Directive 2016/343).


Polish ordinary courts, a concept including the Regional Court, form part of the Polish judicial system in the ‘fields covered by Union law’ as stated Article 19(1) TEU. Judicial independence is paramount therefore to safeguarding effective legal protection under Article 19(1).

A mechanism for secondment of judges must therefore provide for necessary guarantees to safeguard against a secondment being a way to impose political control on judicial decisions.

On review of the mechanism, the Court found that there are several factors that permit the Minister for Justice to influence judges – risking judicial independence. Criteria for a secondment and the termination of the same must be known in advance, together with a sufficient statement of reasons. Termination of a secondment must be able to be challenged in a manner that protects in full the rights of defence; this is important given that termination can be compared to a disciplinary penalty. The position of the Minister also raises concern as to the impartiality of seconded judges – with this individual holding power over the public prosecutor of the ordinary courts and seconded judges.

Taken in whole, this was not considered by the Court to be in line with the obligation to comply with the important requirement of judicial independence.

On Directive 2016/343 and the presumption of innocence in criminal proceedings, there is an assumption here that a judge is free of bias and prejudice within the proceedings and consideration of the accusations made against the individual. The existence of the above discussed mechanisms and intricacies were viewed to potentially impede on judge’s independence and impartiality – the presumption of innocence was threatened as a result.

Court: Court of Justice of the European Union

Case: Case C-821/19 Commission v Hungary (Criminalisation of assistance to asylum seekers)

Date: 16 November 2021


In 2018, Hungary amended laws encompassing measures against illegal immigration.

Hungary introduced measures adding an additional ground of inadmissibility for international protection of an application and also criminalised the organisation of activities which supported the lodging of applications for asylum from those not eligible for asylum under national law.


The Court upheld the vast majority of the Commission’s actions. Hungary was found to have failed to fulfil obligations under the Procedures Directive. Here, Hungary permitted the rejection of an application for international protection as inadmissible based on the fact that the individual arrived in Hungary through a member state where they were not in danger of persecution or risk serious harm.

The newly introduced ground for inadmissibility did not correspond to the exhaustive list of situations where an application can be considered to be inadmissible under the Procedures Directive.

Hungary were also found to have failed in their obligations under the Procedures and Reception Directives in introducing the measure on criminalisation of those assisting in the making or lodging of an asylum application. This measure was viewed to restrict the rights enshrined in the Procedures and Reception Directives and the Court went into insightful detail on these point in relation to the various aspects of the introduced measures.

Court: Court of Justice of the European Union

Case: Advocate General’s (AG Campos Sánchez-Bordona) Opinion in Case C-156/21 and Case C-157/21 Hungary v Parliament and Council; Poland v Parliament and Council

Date: 2 December 2021


A Regulation to establish a regime of conditionality for the safeguarding of the Union budget where there are breaches of a certain nature of principles associated with the rule of law in member states was introduced on 16 December 2020. The instrument permits the Council to adopt measures to achieve this protective aim.

Two member states, Poland and Hungary, took action in the Court to seek the annulment of this Regulation due to an alleged inadequacy or lack of legal basis.


From the outset, the Opinion highlights that the Regulation aims to form a specific mechanism to ensure the proper management of the Union budget where there is a risk to the financial stability and financial interests to these funds causes by breaches to rule of law principles.

This is a financial conditionality instrument and not a mechanism to sanction member states for breaches to rule of law. This differentiation was emphasised and elaborated on as follows:

- The Regulation has a requirement for a sufficiently direct link between a breach to a rule of law principle and budget implementation – only those directly linked fall into the scope of the Regulation;

- This therefore falls into the meaning of Article 322(1)(a) TFEU, an appropriate legal basis for the instrument;

- Taken as a whole, it is clear the Regulation relates to breaches only where there is an impact of serious risk of the breach affecting sound financial management of the Union budget/protection of the Union’s financial interests directly;

- Mechanisms of this nature can be seen already in the architecture of existing instruments; and

- Overall, the Regulation satisfies the principle of legal certainty – it meets criteria to have clarity, precision and foreseeability.

Therefore, the Opinion concluded that the action for annulment should be dismissed.

Court: Court of Justice of the European Union

Case: Case C-490/20 Stolichna obshtina, rayon ‘Pancharevo’

Date: 14 December 2021


A Bulgarian national (V.M.A) and her partner (K.D.K) resided in Spain from 2015, married in 2018 and had a child in 2019 born in Spain. The Spanish birth certificate referred to both women as mothers of the child. To obtain a Bulgarian identity document, a Bulgarian birth certificate was requested and the form applicable here in Bulgaria had only one box for mother and one for father with only one name permitted in each box. This prevented an ability to provide evidence of parentage of child in the process.

An action was brought by V.M.A against the refusal before the Administrative Court of Sofia, Bulgaria. This court referred the question to the Court of Justice based on interpretation of Article 4(2) TEU, 5 Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter and whether these articles require, under the circumstances, a member state to issue a birth certificate without specifying which mother gave birth to the child.


Where a minor is a Union citizen with an already completed birth certificate (by competent authorities in a member state showing that child to have parents of the same sex), the member state where the child is a national must:

- Issue an identity card/passport, without prior requirement of a birth certificate from national authorities to the child; and

- Recognise the document from the other member state that permits the child to exercise, with their two mothers (holding status as parent as recognised in the host member state), the right of free movement and ability to reside in the territory of the member states (Article 21(1) TEU). This does not undermine national identity or threaten public policy of the member state.

The Court of Justice also emphasised that any measures able to hinder the exercise of freedom of movement of persons is permitted only where there is justification in accordance with fundamental rights protected in the Charter.

Depriving the child from a relationship with one of the parents when exercising that right or for the exercise of the right to be made impossible or extremely difficult based on the fact child’s parents are of same sex was confirmed to be against Article 7 and 24 of the Charter.