Enforcing the Charter of Fundamental Rights through EU funding: A first assessment ahead of the next Multiannual Financial Framework

A. The case of Hungary

Hungary is the only Member State to have been subject to the parallel application of all three values-related conditionality regimes. ³⁴ Most notably, the approval of its National Recovery and Resilience Plan (NRRP) was first delayed until 15 December 2022 and then made conditional on a number of rule-of-law milestones, which have since halted access to RRF funding. ³⁵ In addition, on the same day of the approval of the NRRP, the Council adopted an implementing decision based on the Conditionality Regulation, ³⁶ which resulted in the suspension of 55% of the budgetary commitments under three operational programmes of cohesion policy funds. ³⁷ Finally, and most importantly for the purposes of this article, on 22 December 2022 the Commission approved the Partnership Agreement with Hungary, but considered that the Charter horizontal enabling condition was not fulfilled despite the positive self-assessment submitted by Hungary. ³⁸

The primary ground for the non-fulfilment of the Charter horizontal enabling condition concerns deficiencies relating to judicial independence, which undermine the right to effective judicial protection enshrined in Article 47 of the Charter. This issue may hinder the implementation of all specific objectives of the relevant funds, as it raises reasonable doubts about the independence of domestic judges who may be called upon to adjudicate cases involving actions carried out under EU-funded programmes. Accordingly, this overarching issue is reflected in all implementing decisions approving the operational programmes under the funds governed by the Common Provisions Regulation ³⁹ – except for those relating exclusively to technical assistance, ⁴⁰ which fall outside the scope of enabling conditions. In each decision, the Commission stated that the Charter horizontal enabling condition would be considered fulfilled once Hungary had enacted and applied a set of legislative amendments, notably regarding the National Council of the Judiciary, the Constitutional Court, the Supreme Court and the procedure by which the latter may review preliminary ruling requests from lower courts. ⁴¹ These amendments mirrored those required under the milestones attached to the decision approving Hungary's NRRP. ⁴²

Besides judicial independence issues, the Charter horizontal enabling condition was also deemed unfulfilled due to concerns related to the Hungarian Act LXXIX of 15 June 2021 on stricter action against paedophile offenders and amending certain acts for the protection of children (so-called ‘Child Protection’ Law), as well as to serious threats to the right to asylum and academic freedom. However, these concerns were considered relevant only to some specific objectives of the European Social Fund + (ESF+), the European Regional Development Fund (ERDF) and the Asylum, Migration and Integration Fund (AMIF) – thus leading to a targeted suspension of repayments for specific actions connected with potential breaches of the Charter.

Notably, the Commission deemed that the ‘Child Protection’ Law could directly affect compliance with the Charter in the implementation of EU-funded actions devised for the benefit of children, particularly in the field of education. ⁴³ This legislation prohibits making available to minors, including in educational settings, content that portrays or promotes homosexuality or any gender identity different from the sex assigned at birth. In the landmark judgment Commission v. Hungary (Valeurs de l’Union), the Court recently agreed with the Commission that the legislation raises, inter alia, serious issues of compatibility with the Charter, particularly under Articles 1 (human dignity), 7 (right to respect for private and family life), 11 (freedom of expression) and 21 (non-discrimination). ⁴⁴ While the case was still pending before the Court, the Commission decided to suspend access to ESF + funding for the repayment of actions under those specific objectives which are more relevant to children, as those actions (e.g., development of digital educational content) may be required to comply with the ‘Child Protection’ Law and could therefore be affected by those breaches of the Charter. ⁴⁵

The serious risks to the right to asylum and to the principle of non-refoulment arise from the set of measures adopted by Hungarian authorities that have already been the subject of three infringement proceedings and three corresponding judgments of the Court of Justice finding breaches of EU law. ⁴⁶ These include the rules and procedures applicable to the treatment of asylum-seekers in transit zones, the mandatory ‘pre-procedure’ to be completed by asylum-seekers in a third country before applying for international protection, as well as the criminalization of activities facilitating the lodging of applications for international protection. The deficiencies of the Hungarian asylum system were considered relevant to the implementation of two specific objectives of the AMIF and accordingly led to the suspension of repayments for actions undertaken under these objectives. ⁴⁷ According to the Commission, there is a serious risk that EU funding under the AMIF programme be used, for instance, to finance trainings or staff costs linked to the pre-procedure for international protection introduced in 2020 in breach inter alia of the right to asylum under Article 18 of the Charter, or to support the removal of a third-country national in violation of the principle of non-refoulment under Article 19 of the Charter. ⁴⁸

Finally, the Commission deemed the Charter horizontal enabling condition unfulfilled due to threats to academic freedom arising from the process of steady privatization of universities in Hungary and the transfer of organizational and operational competences to the Board of Trustees, whose members are directly appointed by the government for life and are devoid of any form of external control. This has led to the suspension of funding under the ESF + and the ERDF as regards the implementation of those specific objectives which are more relevant to research and education. ⁴⁹ The Commission has especially pointed to the risk of political control over the development of degree programmes and research projects benefiting from EU funding, as well as over the appointment of university staff involved in the implementation of EU-funded projects. ⁵⁰ It is relevant to notice that this issue is also connected to one of the grounds of the Council's decision adopting measures under the Conditionality Regulation, namely the deficiencies regarding the framework governing the operation of so-called ‘public interest trusts’ – i.e., foundations endowed by the state with the management of key public assets, including universities, and raising serious conflict of interest issues. ⁵¹ As a consequence of the Council's decision under the Conditionality Regulation, on top of the programmes covered by the application of the Charter horizontal enabling condition, there is also a general prohibition for the Commission to enter into new legal commitments with any public interest trust established on the basis of the Hungarian Act IX of 2021 or any entity maintained by them, including universities. ⁵²

To sum up, as a result of the decisions taken in December 2022, judicial independence issues halted access to all funds governed by the Common Provisions Regulation, while the reimbursement of actions under some specific objectives of the ESF+, ERDF and AMIF was suspended also on other grounds, namely the ‘Child Protection’ Law, and the threats to the right to asylum and academic freedom.

This state of affairs changed on 13 December 2023, when the Commission considered that Hungary had taken the necessary measures to address concerns relating to judicial independence, thereby fulfilling the Charter horizontal enabling condition insofar as Article 47 of the Charter was concerned. ⁵³ This decision is without prejudice to the portion of EU funding suspended also on other grounds under the Charter horizontal enabling condition, the Conditionality Regulation or the RRF. As regards the latter, for the reasons mentioned above, the same measures might be deemed sufficient by the Commission to meet the rule-of-law milestones concerning judicial independence. However, Hungary has not yet submitted payment requests relating to these milestones, which therefore remain unfulfilled pending the Commission's positive assessment.

The Commission's decision of 13 December 2023 sparked strong criticism in both academic ⁵⁴ and public debate, ⁵⁵ as well as in EU institutional circles, ⁵⁶ especially due to reasonable doubts that the decision to release funds was part of a broader political compromise aimed at securing agreement on the opening of accession negotiations with Ukraine and the mid-term revision of the MFF, including €50 billion funding for the Ukraine Facility, at the expense of judicial independence in Hungary. Notably, immediately after the Commission's decision lifting the suspension of funds under the Charter horizontal enabling condition, former Hungarian Prime Minister Viktor Orbán left the room during the European Council meeting of 14–15 December 2023, thereby allowing the remaining members to decide on the opening of accession negotiations with Ukraine. ⁵⁷ The veto on the MFF mid-term revision was then withdrawn only after the first payments to Hungary had been released, in early February 2024. ⁵⁸ While the timing of the decision can hardly be explained as a mere coincidence, it is more doubtful whether the legal threshold for establishing a misuse of powers by the Commission, as alleged by the Parliament in the third plea of the pending case C-225/24 Parliament v. Commission, is actually met. According to the Court's settled case law, it would be necessary to establish, on the basis of ‘objective’ factors, that the decision was adopted ‘solely, or at the very least primarily, for purposes other than those for which the power in question was conferred’. ⁵⁹ As AG Ćapeta also illustrates in her Opinion, this rather strict evidentiary requirement makes it difficult to establish a misuse of powers in the present case. ⁶⁰

The decision of 13 December 2023 is, however, controversial on other grounds also, which – as mentioned in the introduction – are included in the case lodged by the Parliament before the Court of Justice. Firstly, in the ‘freezing’ decisions of 22 December 2022, the Commission had stated that the fulfilment of the Charter horizontal enabling condition required not only that the legislative amendments listed therein be adopted, but that they enter into force and be applied. ⁶¹ On the contrary, it is undisputed that some of the required legislative amendments adopted by Hungary entered into force months after the Commission's decision lifting the suspension of funds. ⁶² This adds to the more substantive doubts on whether and to what extent these amendments provided sufficient guarantees as regards judicial independence in Hungary. ⁶³ In this light, the key question the Court will be called upon to address revolves around the nature and scope of the Commission's discretion in assessing compliance with the Charter horizontal enabling condition and the corresponding standard of judicial review. ⁶⁴

Secondly, as will be explained in more detail below, the decision of 13 December 2023 provides hardly any substantive explanation for the Commission's positive assessment of compliance with the Charter horizontal enabling condition, thus sitting uneasily with the duty to state reasons laid down in Article 296 TFEU (see section 4.A below).

B. The case of Poland

Despite not being subject to the application of the Conditionality Regulation, Poland has been the Member State most affected by the enforcement of conditionality regimes in financial terms. Between mid-2021 and early 2024, the EU institutions suspended over €130 billion in funding to Poland – €59.8 billion under the RRF and €76.5 under the Charter horizontal enabling condition. ⁶⁵

Concerning the latter instrument, available information is far more limited than in the case of Hungary. This is mainly due to the fact that, unlike Hungary, Poland acknowledged in its own self-assessment that the Charter horizontal enabling condition had not been fulfilled. Hence, the Commission considered itself relieved of the duty to motivate in detail its decisions, likely based on a literal interpretation of Article 15(4) of the Common Provisions Regulation, according to which the Commission shall ‘set out its assessment’ where it ‘disagrees’ with the Member State's assessment. ⁶⁶ Be that as it may, all of the Commission's implementing decisions approving Poland's programmes mention the non-fulfilment of the Charter horizontal enabling condition, but offer no further explanation regarding the specific grounds for non-compliance. ⁶⁷ Nor additional information was provided in the press release of 30 June 2022, which constitutes the first public statement by the Commission on Poland's non-fulfilment of the Charter horizontal enabling condition. ⁶⁸

What is now certain is that non-fulfilment of the Charter horizontal enabling condition depended on issues of judicial independence – undoubtedly the most critical aspect of constitutional backsliding in Poland. ⁶⁹ Besides some press reports in this direction, ⁷⁰ this could be inferred at that time from the parallel assessment of the Polish NRRP, whose approval was initially delayed and later conditioned on a set of milestones linked to judicial reforms, particularly concerning the disciplinary regime for judges. ⁷¹ The Commission explicitly confirmed this interpretation only in February 2024, when it decided to unlock funds under both the RRF and the Common Provisions Regulation, following the judicial reforms undertaken or promised by Polish authorities in the aftermath of the 2023 national elections. ⁷²

As in the case of Hungary, the systemic deficiencies as regards judicial independence in Poland were deemed relevant to all specific objectives of EU-funded programmes covered by the Common Provisions Regulation, thus halting access to the whole package of €76.5 billion under cohesion, home affairs and fisheries funds until the end of February 2024, when the Charter horizontal enabling condition was considered fulfilled.

Unlike the case of Hungary, it seems instead that the Commission did not consider other Charter-related issues relevant under the enabling condition when assessing the Polish Partnership Agreement and Operational Programmes. ⁷³ This may appear surprising considering the situation in Poland at the time the programming documents were approved. One might have reasonably expected, for instance, that issues of non-discrimination – particularly concerning LGBTIQ + people – would be central to the assessment of the programmes, as the Commission itself had committed to in its ‘LGBTIQ Equality Strategy’. ⁷⁴ It is worth recalling that, in 2021, the Commission had initiated an infringement proceeding against Poland following the resolutions adopted by several Polish municipalities and regions establishing the so-called ‘LGBTIQ-free zones’, ⁷⁵ that is, areas openly declaring themselves hostile to LGBTIQ + people. ⁷⁶ In the previous financial period, some of these municipalities also lost access to EU-funded actions, such as the ‘Town Twinning’ programme, for the same reason. ⁷⁷

As already mentioned, on 29 February 2024 the Commission considered that the Charter horizontal enabling condition had been fulfilled and released the frozen funds to Poland, on the basis of its positive assessment of the reforms envisaged in the Action Plan to restore the rule of law submitted in February 2024 by the then newly-elected Polish government led by Donald Tusk. ⁷⁸ However, more than two years after, the Action Plan has yet to be fully implemented, mostly due to the institutional stalemate caused by former President Andrzej Duda and current President Karol Nawrocki, both supported by the opposition party Law and Justice (PiS), who have deployed their powers to obstruct the implementation of the main legislative reforms concerning the judiciary in Poland. ⁷⁹ Looking retrospectively, it is difficult to dispel the impression that the Commission's decision to release funds to Poland before the actual implementation of the Action Plan was premature, since the Commission lost financial leverage while the main issues underlying the activation of the values-related conditionality mechanisms at the outset remained unresolved. ⁸⁰

A. Transparency

The first and most evident issue concerns transparency, ⁹¹ both in the procedure and in the implementing decisions through which the Charter horizontal enabling condition is applied in practice.

In the absence of clear procedural rules comparable to those of the Conditionality Regulation, ⁹² the procedure by which the Commission assesses compliance with the Charter horizontal enabling condition remains rather informal in nature – and at times obscure even to experts in the field. For the most part, the assessment takes place behind closed doors, with the Commission and the Member State concerned engaging in dialogue – and arguably political bargaining – over the fulfilment of the Charter horizontal enabling condition. If the Commission disagrees with the Member State's self-assessment, as in the case of Hungary, it adopts implementing decisions that briefly outline the grounds on which the Charter horizontal enabling condition is deemed unfulfilled. Conversely, if the Member State itself acknowledges non-fulfilment and the Commission concurs, as occurred in the case of Poland, the implementing decisions merely reference that the Charter horizontal enabling condition is unfulfilled without providing any statement of reasons. As already mentioned, this makes unclear on what grounds the Charter horizontal enabling condition is considered not fulfilled. In the case of Poland, for instance, it is uncertain whether issues other than those relating to judicial independence – for example, the ‘LGBTIQ-free zones’ – have been assessed by the Commission at the time of the approval of the programmes.

Besides being at times devoid of any statement of reasons, the Commission implementing decisions – let alone the exchange of letters and other preparatory documents – are not always publicly available. Strikingly, this is so far the case with the contested implementing decision of 13 December 2023, by which the Commission reversed its assessment of Hungary's fulfilment of the Charter horizontal enabling condition with regard to judicial independence and which is now the subject of pending Case C-225/24, Parliament v. Commission. The Commission has continued to refuse to disclose the documents concerning the decision to lift the suspension of funds to Hungary notwithstanding the European Ombudsman's view that this amounted to maladministration. ⁹³

In some cases, the Commission issued press releases, which at times constitute the only official source available on the application of the Charter horizontal enabling condition. However, the Commission's inconsistent use of press releases has done little to remedy the overall opacity surrounding its exercise of spending powers under the instrument.

These elements raise critical issues under several provisions of EU primary law. Most notably, Article 296 TFEU imposes on EU institutions an obligation to state the reasons underpinning any legal act. In addition, Article 15 TFEU provides that ‘each institution […] shall ensure that its proceedings are transparent’ – an obligation that goes hand in hand with the general requirement that decisions be taken ‘as openly as possible’, ⁹⁴ and is further concretized in Regulation 1049/2001 on public access to EU institutions’ documents. ⁹⁵

It is not the intention of this author to underestimate the importance of maintaining a certain degree of confidentiality in the assessment process and in the dialogue with the Member State concerned. This is particularly relevant in the phase preceding the Commission's decision, when confidentiality may also help the Commission secure compliance without exacerbating tensions with the Member State in question. Nonetheless, one cannot overlook the significant public interest at stake in decision-making processes that lead to the disbursement or suspension of substantial amounts of EU funds, especially when such decisions relate to alleged violations of rights and freedoms protected by the Charter. Both Regulation 1049/2001 ⁹⁶ and the case law of the Court of Justice of the European Union ⁹⁷ make clear that exceptions to the principle of the widest possible access to documents must be interpreted and applied strictly, and cannot justify non-disclosure where there is an overriding public interest in transparency. This is particularly the case where decisions have already been adopted and produce legal effects for third parties, including, most notably, the final beneficiaries of EU funds.

Against this background, the Commission should reverse its current approach, by providing statements of reasons, making all its implementing decisions publicly available and adopting a more consistent use of press releases in the application of the Charter horizontal enabling condition. In addition, with a view to the next MFF, a broader discussion on how to improve the procedural framework governing conditionalities would be necessary to ensure greater transparency in the enforcement process – starting with the requirement to state reasons irrespective of whether the Commission agrees or disagrees with the Member State's assessment of compliance with the Charter horizontal enabling condition. Beyond being difficult to reconcile with several EU primary law provisions, the current lack of transparency also risks undermining the Commission's legitimacy in the eyes of citizens and hindering the proper functioning of political accountability mechanisms within the EU institutional framework. ⁹⁸

The forthcoming judgment in the Case C-225/24, Parliament v. Commission, will certainly offer important insights on this aspect. As emerged from the hearing of 14 October 2025, legally speaking, one of the issues in dispute between the two institutions concerns whether the implementing decision lifting the suspension of funding under the Charter horizontal enabling condition should be regarded as an act of individual or general application – a question that may have a bearing on the extent to which the Commission is required to disclose its reasoning in the implementing decisions. In fact, for acts of individual application, the statement of reasons may also not be fully set out in the decision itself, provided that the addressee (in this case, Hungary) participated in the procedure and is therefore aware of the grounds for the decision. ⁹⁹ The same logic, however, does not apply to acts of general application, which by definition ‘produce legal effects with respect to categories of persons envisaged in general and in the abstract’, ¹⁰⁰ as may be the case for final beneficiaries of EU funds. The Parliament and Advocate General Ćapeta stand on this latter front and deem that the Commission has infringed its duty to state reasons when adopting the contested decision. ¹⁰¹ An indication pointing in this direction also comes from the General Court, which recently qualified the Council implementing decision activating the Conditionality Regulation as an act of general application ‘in that it applies generally to the economic operators […] falling within the scope of the contested provision’. ¹⁰²

B. Legal certainty

The analysis of the practical application of the Charter horizontal enabling condition has exposed the broad discretionary powers exercised by the Commission in the application of the Charter horizontal enabling condition. As the pending Case C-225/24 Parliament v. Commission illustrates, this is not without criticism, as it heightens the risk of political compromises over the respect of the founding values of the European Union. On the other hand, as will be examined in this section, it also has significant implications for legal certainty.

The Commission is clearly in the driver's seat when it comes to the assessment and enforcement of enabling conditions, and only a few substantive and procedural constraints have been incorporated into the relevant legal framework. The provisions on the Charter horizontal enabling condition require, generally, that ‘effective mechanisms are in place to ensure compliance with the Charter’, including: a) ‘arrangements to ensure compliance of the programmes supported by the Funds and their implementation with the relevant provisions of the Charter’; and b) ‘reporting arrangements to the monitoring committee regarding cases of non-compliance of operations supported by the Funds with the Charter and complaints regarding the Charter submitted in accordance with the arrangements made pursuant to Article 69(7)’. ¹⁰³ However, only limited further guidance has been provided by the Commission on how compliance of EU-funded programmes with the Charter should be assessed, and on how reporting mechanisms should be designed to meet the requirements of the Charter horizontal enabling condition. The uncertainties surrounding the practical implementation of the Charter horizontal enabling condition emerged also in recent consultations carried out by the Commission with relevant stakeholders at national and local levels, which evidenced a ‘clear call’ for additional guidance and technical support. ¹⁰⁴

Currently, the most relevant instrument available is the Commission's Guidance on ensuring the respect for the Charter when implementing the European Structural and Investment Funds, which was issued in 2016 and thus predates the introduction of the Charter horizontal enabling condition. This document can certainly be useful for national authorities involved in the management of EU funds, as it provides more concrete benchmarks for assessing compliance with the Charter in EU-funded operations. However, the Guidance was published almost a decade ago and has never been updated. For the same reason, it is not tailored to the application of the Charter horizontal enabling condition.

The Commission acknowledged the need to provide more technical guidance to national authorities as early as in the 2020 Strategy to strengthen the application of the Charter, ¹⁰⁵ and subsequently issued a call for tenders to develop a ‘Manual on Fundamental Rights in EU Funding’, ¹⁰⁶ which was eventually released at the end of 2025. ¹⁰⁷ Having been published toward the end of the 2021–2027 programming period, the Manual is nevertheless destined to have limited impact under the current MFF and is more likely to provide guidance under the next multiannual financial period. In addition, the Manual cannot, strictly speaking, be equated to Commission's guidelines, as it was prepared for the Commission and reflects only the views of its authors. It is worth noting that, under the current MFF, guidance documents have been developed at national level. ¹⁰⁸ While this can be welcomed as a sign of growing awareness of Charter-related issues in the management of EU funds by national authorities, it also risks contributing to the emergence of divergent standards across Member States.

In this light, and in view of the next MFF, it would be advisable to develop clearer criteria at the EU level for the application of the Charter horizontal enabling condition. This would, first, enhance legal certainty for national authorities in the implementation of the Charter horizontal enabling condition. Moreover, it could enhance transparency in the assessment procedure and help place limits on the broad discretionary powers currently exercised by the Commission under this instrument. Albeit from a different angle, the forthcoming judgment in the pending Case C-225/24 Parliament v. Commission may shed further light on this issue, as the Court is called upon to define the contours of the Commission's discretion in assessing compliance with the Charter horizontal enabling condition.