Fundamental Rights and Treaty Freedoms: The ‘Derogation Situation’ and Infringement Proceedings

Abstract

Abstract In three recent actions brought by the Commission against Hungary, the Court of Justice was asked to consider whether an infringement action can be brought on the grounds of an alleged violation of a provision of the Charter of Fundamental Rights, in addition to an alleged breach of a Treaty freedom. Ever since the ERT case (the Greek television monopoly case), it has been standard case law that EU fundamental rights can be relied upon in situations where Member States seek to derogate from provisions of EU law (‘derogation situations’). Any justification of restrictive measures relied upon by a Member State must respect fundamental rights. In these three recent judgments, the Court built upon this case law and found that the European Commission may start an infringement action based on the Charter in a ‘derogation situation’ and ask for an independent finding of a breach of the Charter. While the Court is yet to address the question of whether a self-standing claim of alleged non-compliance with a Charter provision can also hold where there is only an infringement of a Treaty freedom without a justification being invoked, the case law as it stands is significant for the protection of fundamental rights. As a separate finding of a breach of fundamental rights in infringement proceedings can entail different consequences, it brings added value for citizens.