Tuesday, 11 January 2022

Rainbow families and the right to freedom of movement – the V.М.А.v Stolichna obshtina, rayon ‘Pancharevo’ case

Chiara De Capitani, Linguist agent at the European Commission and honorary fellow European Union law at the University of Naples "L'Orientale". The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission.


‘A child is in no way responsible for the differences in the scales of values in society between EU Member States’, notes Advocate General Juliane Kokott in her opinion (AG’s opinion). Yet, unfortunately, children of rainbow families face the very real risk to have their legal ties to one or both parents disappear once they cross the border of their Member State of residence. A recent study by the European Parliament (the ‘EP Study’ by Tryfonidou, Wintemute) found that in at least 11 EU Member States same-sex couples with children may not be legally recognised as the joint parents of their children.

The present Grand Chamber ruling, C490/20 V.М.А. v Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria) tackles a recurring problem faced by rainbow families: the refusal from an EU Member State to recognise a birth certificate issued in another Member State that indicates two parents of the same sex as the legal parents of a child. This Court of Justice of the European Union (CJEU) ruling builds on the 2019’s C673/16 Coman and others ruling (discussed here) and allows the AG and the CJEU to explore and clarify several aspects of the tension between the cross-border protection of family life and the best interests of the child with a Member States’ protection of its national identity.

Facts of the case

A same-sex couple composed of a Bulgarian national (V.M.A, the applicant) and a British national (K.D.K) have been residing in Spain since 2015 and built their family life there: they married in 2018 and welcomed a baby daughter (S.D.K.A) in 2019. The Spanish authorities issued the child a birth certificate recognising both partners as her mothers and not disclosing who gave birth to her.

V.M.A requested the Bulgarian authorities issue her daughter a Bulgarian birth certificate, a pre-condition under Bulgarian law to issue identity documents certifying the latter’s Bulgarian citizenship. However, Bulgarian law only recognises heterosexual marriages and the parentage of children as composed of a father and a mother. Therefore, Bulgarian authorities rejected the application for the issuing of a Bulgarian birth certificate on two grounds: the absence of information concerning the child’s birth mother and the fact that the registration of two same-sex parents in a birth certificate is contrary to Bulgarian public policy. The applicant brought an action against the refusal decision before the Administrative Court of the City of Sofia (the referring court).


The Court’s answer to the recast ‘judgment of Solomon’

This already complex case is off to a rocky start when, at the hearing, the Bulgarian Government refutes the referring court’s claim that the child is a Bulgarian national. The referring court considers that the child has Bulgarian nationality under Article 25(1) of the Constitution of Bulgaria stating that ‘a person is a Bulgarian national if at least one of the parents is a Bulgarian national’. On the other hand, the Bulgarian government considers that the Bulgarian mother, to be recognized as such, has either to disclose that she gave birth to the daughter or proceed to become the “legal mother” following Article 64 of the Family Code.

These hypothetical possibilities offered by the government create a twisted “judgment of Solomon”-type of situation for both mothers: they can either sacrifice their daughter’s claim to Bulgarian citizenship and the derived family law rights this implies with the Bulgarian mother or they can defend their daughter’s right to Bulgarian citizenship by claiming the Bulgarian mother is the sole mother, severing the British mother’s parent-child relationship to her daughter in Bulgaria.

The Court, however, did not believe that the threat of splitting the child in two should have been the way to reach a fair compromise, quite the contrary.

Firstly, the Court claims that the referring court alone has jurisdiction in this matter, so the CJEU’s ruling will consider that S.D.K.A. has Bulgarian nationality by birth due to the Bulgarian constitution.

Secondly, the Court clarifies, the daughter - in her capacity as a Union citizen - can rely on the rights pertaining to Union citizenship, including Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) also against her Member State of origin and even she was born in another Member State and has never travelled to her State of origin.

Thirdly, since every citizen of the Union has the right to move and reside freely within the territory of the Member States, Article 4(3) of Directive 2004/38/EC (the ‘Freedom of movement’ Directive) requires Member States to issue their nationals identity documents and, the Court clarifies ‘this document has to be issued regardless a of whether a new [Bulgarian] birth certificate is drawn up’.

Fourthly, such identity document must enable the daughter to move and reside freely within the territory of the Member States with each of her two mothers.

Lastly, since Article 21(1) TFEU includes the right to lead a normal family life with ones’ family members and the Spanish authorities have lawfully established the parent-child relationship between S.D.K.A and her two parents all Member States have to recognize V.M.A and K.D.K as having the right to accompany that child within the territory of Member States when exercising her freedom of movement. Whether one of the mothers gave birth to the daughter or whether her parents are biological or legal does not seem to be of interest to the Court: the fact that one Member States has recognised them as parents is sufficient to require all other Member States to mutually recognize this birth certificate for the purpose of freedom of movement. In practical terms also the same-sex parents of a child are entitled to a document which mentions them as being entitled to travel with their child: this document can be drawn up also by the host Member State and may be a birth certificate (like the present case).

The fragile balance between national identity, public policy and fundamental rights, including the right to respect for family life

The Court proceeds with analysing whether Article 4(2) of the Treaty on European Union (‘TEU’) protecting Member States’ national identity could serve as a justification for the Bulgarian authorities’ refusal to issue a birth certificate and an identity document to S.D.K.A.

Building on the Coman case, the Court recalls that the concept of public policy as a ‘justification for a derogation from a fundamental freedom must be interpreted strictly’. Recognizing the parent-child relationship between the child and each of her parents in the context of the child’s exercise of her rights under Article 21 TFEU does not undermine the national identity or pose a threat to the public policy of that Member State (which is thus still free to decide whether or not to allow same-sex marriage and parenthood under its national law).

The reverse of the medal is that ‘a national measure that is liable to obstruct the exercise of freedom of movement of persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter’ and, the Court finds, Bulgaria’s “judgment of Solomon”-style proposals would be contrary to several fundamental rights of each mother and their daughter. For instance, the right to respect for private and family life, guaranteed by Articles 7 Charter of Fundamental Rights of the European Union (the Charter) and 8 of the European Convention on Human Rights (ECHR) and following the case-law of the European Court of Human Rights (ECtHR) and the CJEU, cover both the mutual enjoyment by parent and child of each other’s company and the relationship of same-sex couples.

The right to have the best interests of the child taken into account, guaranteed by article 24 of the Charter translates also in obligations for Member States deriving from the UN Convention on the Right of the Child not to discriminate the latter (Article 2) including on the basis of the sexual orientation of the child’s parents when registering their name and nationality (Article 7).

Interestingly, with regards to the need to take due account to the provisions of the Convention on the rights of the Child when interpreting article 24 of the Charter, the Court refers to its previous M.A.v État belge ruling. With regards to the return of irregularly staying third country nationals, the Court has ruled twice in the past 18 months that family unity must be taken into account before adopting a return decision, even where the person to whom the return decision is addressed is not a minor but their father. The M.A.v État belge ruling concerned a father who was considered a threat to public order due to having committed  several offences whereas the LM v Centre public d’action sociale de Seraing ruling concerned a father who was unable to meet his or his adult seriously-ill daughter’s needs without receiving social assistance. In both cases the Court found that the need to protect the family life of these children under Articles 5 (a) and 14 (1) (a) of Directive 2008/115/EC (the ‘Returns’ Directive) overrode the State’s prerogative to return their fathers.

Lastly, these rights would risk being violated also whether S.D.K.A did not have Bulgarian nationality. In that case, both her and her mother K.D.K would fall under the definition of ‘spouse’ and ‘direct descendant’ within the meaning of article 2 of Directive 2004/38/EC due to the fact that V.M.A is a Union citizen and is therefore also protected by Article 21(1) TFEU.

The finding by the Court that the definition of ‘direct descendant’ covers the child of a same-sex couple will likely extend to the right to family reunification of third country nationals currently provided by several EU instruments. For instance, various directives concerning certain types of workers from third countries (researchers, highly skilled workers, workers in the field of intra-corporate transfers) refer to the definition of family pursuant to art. 4 par. 1 of Directive 2003/86/EC (the ‘Family Reunification’ Directive) and allow Member States to recognize more favourable provisions with respect to family reunification. As Directive 2003/86/EC includes in its list of family members the ‘spouse’ and ‘minor children’ of the applicant, by analogy, same-sex migrant couples with or without children should benefit from these provisions.

According to various reports (EMN) a dozen Member States currently allow same-sex couples to apply for family reunification and several Member States extend this right also to highly qualified workers (ICF) and to workers in the context of intra-corporate transfers.

Implementation of the rights recognized by the present case

The impact this ruling will have on the day-to-day life of this family is unclear at this stage.

Firstly, there is no exhaustive list of the ‘rights under Article 21 TFEU and secondary legislation relating thereto’ to which S.D.K.A has a right to nor a precise definition of the rights that the “right to lead a normal family life” under Article 21 (1) TFEU would entail. The AG clarifies that, since the definition of ‘direct descendant’ under Directive 2004/38/EC must also be adopted with regard to the concept of the ‘family members’ of a migrant worker for the purposes of Regulation 492/2011/EU (the ‘freedom of movement for workers’ Regulation) S.D.K.A may claim, for example the social and tax advantages associated with V.M.A. By the same reasoning, said Regulation could also cover her admission to that Member State’s general educational, apprenticeship and vocational training courses according to Professor Steve Peers.

Secondly, unfortunately, neither the Court nor the AG elaborate on which parental rights K.D.K is entitled to as a non-EU citizen but as the ‘spouse’ of one. The AG notes that preventing K.D.K  from being recognized as a parent would exclude her from “all the parental duties requiring proof of parental status […], medical decisions or any type of administrative procedure on behalf of the child”. Indeed, the fundamental rights granted by the European Union on many of these issues could vary greatly depending on whether they fall partially inside or outside of the EU’s competences.

(For instance, as the EP Parliament’s study points out, if the legal parent that dies, ‘the child becomes an orphan and it is then up to the family of the legally recognised parent or, in the absence of that, the State, to determine whether the non-recognised parent will even be allowed to maintain links with the child or, ideally, be recognised as the child’s parent. The child, also, does not have any (legal) ties with the family of origin of the parent who is not legally recognised as a parent. Hence, the failure to legally recognise the parent-child relationship creates uncertainty and, with it, insecurity both for the parents and the child as it, in effect, denies their relationship’.)

Her rights as a ‘spouse’ of an EU citizen are also limited. As the EP study found with regards to the implementation of the Coman case: ‘the CJEU does not yet require [the Member State of origin] to recognise a same-sex married couple […] for instance in relation to family, tax, social security, pensions, inheritance, citizenship/nationality, and medical law, e.g. hospital visitation and consultation’.

Finally, as noted by ILGA’s Head of Litigation Arpi Avetisyan: ‘implementation is the crucial part, which often is also the difficult and time-consuming one.  […] In practice the referring court in Bulgaria will have to apply the CJEU judgment and the family will continue the process in Bulgaria. It can also mean further litigation, as it happened in the Coman case […], however in short – if Bulgaria or other countries that don’t recognise same-sex unions refuse to implement the CJEU judgment, the European Commission can take legal action – namely infringement procedures. Just to reiterate, the Court specifically mentioned that MS cannot rely on protection of national identity (i.e. non-recognition of same-sex unions) to refuse the child and her family their rights to free movement’. 


This landmark ruling fills a series of gaps with regards to LGBTIQ* rights, freedom of movement and the protection of ‘family life’ and will likely serve as inspiration for the Commission’s upcoming proposal for a horizontal legislative initiative to support the mutual recognition of parenthood between Member States announced in its LGBTIQ Equality Strategy 2020-2025 the 12 November 2020.

According to the EP Study, said Commission proposal could go even beyond the present ruling and ‘on the legal bases of Articles 18, 21(2), 46, 50(1), and 59(1) TFEU, require[e] all Member States to recognise, for all purposes of national law […] the adults mentioned in a birth certificate issued in another Member State as the legal parents of the child mentioned in that birth certificate, regardless of the sexes or the marital status of the adults’.

This, the EP Study believes, ‘will ensure that when a rainbow family moves, the familial ties among the members of the family – as legally established and reflected in a birth certificate issued by another Member State – will automatically be recognised in the host Member State for all purposes of national law (including family reunification under Directive 2004/38)’.

It’s important to note that, with regards to issues of cross-border mobility relating to gender identity, the Court has not yet had the opportunity to rule on the rights of parental couples where one or both parents are transgender or non-binary. A 2020 report from Transgender Europe (Karsay) notes that - in addition to the obstacles discussed above - these couples suffer from additional obstacles to freedom of movement and recognition of parental bond. For example, the absence or bureaucratic complexity of the legal procedures for gender recognition can also preclude the recognition of marriage, the birth certificate and the filiation relationship between parents and children.

It is also worth recalling that several interesting cases concerning the cross-border recognition of LGBTIQ* couples and families are still pending before the CJEU and the ECtHR.

With regards to the legal recognition of the right to marry of same-sex couples, three appeals have been registered before the ECtHR, two against Poland (1, 2), the other against Romania. The first two cases concern same-sex couples to whom the Polish authorities refused to register their marriage (celebrated abroad), thus depriving them of the rights normally recognized to married couples in Poland. The third case is an appeal presented by the Coman-Hamilton couple, applicants of the CJEU Coman ruling referred to above. With this appeal currently pending, the couple considers the protracted refusal of the Romanian authorities to recognize their marriage and its legal effects as a violation of the right to marry (Article 12 of the ECHR) and discrimination due to sexual orientation (Article 14) read in conjunction with articles 6, par. 1, 8, 12 and 13 of the ECHR).

With regard to the rights of same-parent couples in cross-border situations, the ECtHR will be called upon to rule on the case of a couple challenging Poland for the non-recognition of the civil union and the birth certificate of the child born in England (NELFA).  

Photo credit: Bjoertvedt, via wikicommons 

A democratic alternative to the Digital Services Act's handshake between States and online platforms to tackle disinformation



By Paul De Hert* and Andrés Chomczyk Penedo**


* Professor at Vrije Universiteit Brussel (Belgium) and associate professor at Tilburg University (The Netherlands)

** PhD Researcher at the Law, Science, Technology and Society Research Group, Vrije Universiteit Brussel (Belgium). Marie Skłodowska-Curie fellow at the PROTECT ITN. The author has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 813497




1. Dealing with online misinformation: who is in charge?


Misinformation and fake news are raising concerns for the digital age, as discussed by Irene Khan, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (see here). For example, during the last two years, the COVID19 crisis caught the world by surprise and considerable discussions about the best course of action to deal with the pandemic were held. In this respect, different stakeholders spoke up but not all of them were given the same possibilities to express their opinion. Online platforms, but also traditional media, played a key role in managing this debate, particularly using automated means (see here).


A climate of polarization developed, in particular on the issue of vaccination but also around other policies such as vaccination passports, self-tests, treatment of the virus in general, or whether the health system should focus on ensuring immunity through all available strategies (see here). Facebook, YouTube, and LinkedIn, just to name a few, stepped in and started delaying or censoring posts that in one way or another were perceived as harmful to governmental strategies (see here). While the whole COVID19 crisis deserves a separate discussion, it serves as an example of how digital platforms are, de facto, in charge of managing online freedom of expression and, from a practical point of view, have the final say in what is permissible or not in an online environment.


The term 'content’ has been paired with adjectives such as clearly illegal, illegal and harmful, or legal but harmful, just to name the most relevant ones. However, what does exactly each of these categories entail, and why are we discussing these categories? What should be the legal response, if any, to a particular piece of content and who should address it? While content and its moderation is not a new phenomenon, as Irene Khan points in her previously mentioned report, technological developments, such as the emergence and consolidation of platforms, demand new responses.


With this background, the European Union is currently discussing at a surprisingly, very quick speed the legal framework for this issue through the Digital Services Act (the DSA, previously summarised here). The purpose of this contribution is to explore how misinformation and other categories of questionable content are tackled in the DSA and to highlight the option taken in the DSA to transfer government-like powers (of censorship) to the private sector. A more democratic alternative is sketched. A first one is based on the distinction between manifestly illegal content and merely illegal content to distribute better the workload between private and public enforcement of norms. A second alternative consists in community-based content moderation as an alternative or complementary strategy next to platform-based content moderation



2. What is the DSA?


The DSA (see here for the full text of the proposal and here for its current legislative status) is one of the core proposals in the Commission’s 2019-2024 priorities, alongside the Digital Markets Act (discussed here), its regulatory ‘sibling’. It intends to refresh the rules provided for in the eCommerce Directive and deal with certain platform economy-related issues under a common European Union framework. It covers topics such as: intermediary service providers liability - building up from the eCommerce Directive regime and expanding it -, due diligence obligations for a transparent and safe online environment -including notice and takedown mechanisms, internal complaint-handling systems, traders traceability, and advertising practices-, risk management obligations for very large online platforms and the distribution of duties between the European Commission and the Member States. Many of the these topics might demand further regulatory efforts beyond the scope of the DSA, such as political advertisement which would be complemented by sector-specific rules as, for example, the proposal for a Regulation on the Transparency and Targeting of Political Advertising (see here).


As of late November 2021, the Council has adopted a general approach to the Commission’s proposal (see here) while the European Parliament is still dealing with the discussion of possible amendments and changes to that text (see here). Nevertheless, as with many other recent pieces of legislation (see here), it is expected that its adoption is sooner rather than later in the upcoming months.


3. Unpacking Mis/Disinformation (part1): illegal content as defined by Member States


We started by discussing misinformation and fake news. If we look at the DSA proposal, the term 'fake news' is missing in all its sections. However, the concept of misinformation appears as disinformation in Recitals 63, 68, 69, and 71. Nevertheless, both terms are nowhere to be found in the Articles of the DSA proposal.


In literature, the terms are used interchangeably or are distinguished, with disinformation defined as the intentional and purposive spread of misleading information, and misinformation as ‘unintentional behaviors that inadvertently mislead’ (see here). But that distinction does not help in recognizing either mis- or disinformation, from other categories of content.


Ó Fathaigh, Helberger, and Appelman (see here) have pointed that disinformation, in particular, is a complex concept to tackle and that very few scholars have tried to unpack its meaning. Despite the different policy and scholarly efforts, a single unified definition of mis- or disinformation is still lacking, and the existing ones can be considered as too vague and uncertain to be used as legal definitions. So, where shall we start looking at these issues? A starting point, so we think, is the notion of content moderation, which according to the DSA proposal, is defined as follows:


'content moderation' means the activities undertaken by providers of intermediary services aimed at detecting, identifying, and addressing illegal content or information incompatible with their terms and conditions, provided by recipients of the service, including measures taken that affect the availability, visibility, and accessibility of that illegal content or that information, such as demotion, disabling of access to, or removal thereof, or the recipients' ability to provide that information, such as the termination or suspension of a recipient's account (we underline);


Under this definition, content moderation is an activity that is delegated to providers of intermediary services, particularly online platforms, and very large online platforms. Turning to the object of the moderation, we can ask what is exactly being moderated under the DSA? As mentioned above, moderated content is usually associated with certain adjectives, particularly illegal and harmful. The DSA proposal only defines illegal content:


illegal content’ means any information, which, in itself or by its reference to an activity, including the sale of products or provision of services is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law;


So far, this definition should not provide much of a challenge. If the law considers something as, it makes sense that it is similarly addressed in the online environment as in the physical realm. For example, a pair of fake sneakers constitute a trademark infringement, regardless of if the pair is being sold via eBay or by a street vendor in Madrid’s Puerta del Sol. In legal practice, regulating illegal content is not black and white. A distinction can be made between clearly illegal content and situations where further exploration must be conducted to determine the illegality of certain content. This is how it is framed in the German NetzDG, for example. In some of the DSA proposal articles, mainly Art. 20, we can see the distinction between manifestly illegal content and illegal content. However, this distinction is not picked up again in the rest of the DSA proposal.


What stands is that the DSA proposal does not expressly cover disinformation but concentrates on the notion of illegal content. If Member State law defines and prohibit mis- or disinformation -which Ó Fathaigh, Helberger and Appelman have reviewed and found to be inconsistent across the EU- , then this would fall under the DSA category of illegal content. Rather than creating legal certainty, this further reinforces legal uncertainty and pegs the notion of illegal content to be dependent on each Member State's provisions. But where does this leave disinformation that is not regulated in in Member State laws? The DSA does not like it, but its regulation is quasi hidden.



4. Unpacking Mis/Disinformation (part2): harmful content non defined by the DSA


The foregoing brings us to the other main concept dealing with content in the DSA, viz. harmful content. To say that this is a (second) 'main' concept might confuse the reader, since the DSA does not define it or regulate it at great lengths.  The DSA’s explanatory memorandum states that `[t]here is a general agreement among stakeholders that ‘harmful’ (yet not, or at least not necessarily, illegal) content should not be defined in the Digital Services Act and should not be subject to removal obligations, as this is a delicate area with severe implications for the protection of freedom of expression’.


As such, how can we define harmful content? This question is not new by any means as we can trace back policy documents from the European Union dating back to 1996 (see here) dealing with this problem. Since then, little has changed in the debate surrounding harmful content as the core idea remains untouched: harmful content refers to something that, depending on the context, could affect somebody due to it being unethical or controversial (see here).


In this respect, the discussion on this kind of content does not tackle a legal problem but rather an ethical, political, or religious one. As such, it is a valid question to be asked if laws and regulations should even mingle in this scenario. In other words, does it make sense to talk about legal but harmful content when we discuss new regulations? Should our understanding of illegal and harmful content be construed in the most generous way to accommodate for the most amount of situations possible to avoid this issue? And more importantly, if the content seems to be legal, does it make sense to add the adjective of ‘harmful’ rather than using, for example, ‘controversial’? Regardless of the terminology used, this situation leaves us with three types of content categories: (i) manifestly illegal content; (ii) illegal, both harmful and not, content; (iii) legal but harmful content. Each of them demands a different approach, which shall be the topic of our following sections.



5. Illegal content moderation mechanisms in the DSA (content type 1 & 2)


The DSA puts forward a clear, but complex, regime for dealing with all kinds of illegal content. As a starting point, the DSA proposal provides for a general no monitoring regime for all intermediary service providers (Art. 7) with particular conditions for mere conduits (Art. 3), caching (Art. 4), and hosting service providers (Art. 5). However, voluntary own-initiative investigations are allowed and do not compromise this liability exemption regime (Art. 6). In any case, once a judicial or administrative order mandates the removal of content, this order has to be followed to avoid incurring liability (Art. 8). In principle, public bodies (administrative agencies and judges) have control over what is illegal and when something should be taken down.


However, beyond this general regime, there are certain stakeholder-specific obligations spread out across the DSA proposal also dealing with illegal content that challenge the foregoing state-controlled mechanism. In this respect, we can point out the mandatory notice and takedown procedure for hosting providers with a fast lane for trusted flaggers notices (Arts. 14 and 19, respectively), in addition to the internal complaint-handling system for online platforms paired with the out-of-court dispute settlement (Arts. 17 and 18, respectively) and, in the case of very large online platforms, these duties should be adopted following a risk assessment process (Art. 25). With these set of provisions, the DSA grants a considerable margin to certain entities to act as law enforcers and judges, without a government body having a say in if something was illegal and its removal was a correct decision.


6. Legal but harmful content moderation mechanisms in the DSA (content type 3)


But what about our third type of content, legal but harmful content, and its moderation? Without dealing with the issue of content moderation directly, the DSA transfers the delimitation of this concept to providers of online intermediary services, mainly online platforms. In other words, a private company can limit apparently free speech within its boundaries. In this respect, the DSA proposal grants all providers of intermediary services the possibility of further limiting what content can be uploaded and how it shall be governed via the platform’s terms and conditions and, by doing so, these digital services providers are granted substantial power in regulating digital behavior as they see fit:


‘Article 12 Terms and conditions


1. Providers of intermediary services shall include information on any restrictions that they impose concerning the use of their service in respect of information provided by the recipients of the service, in their terms and conditions. That information shall include information on any policies, procedures, measures, and tools used for content moderation, including algorithmic decision-making and human review. It shall be set out in clear and unambiguous language and shall be publicly available in an easily accessible format.


2. Providers of intermediary services shall act in a diligent, objective, and proportionate manner in applying and enforcing the restrictions referred to in paragraph 1, with due regard to the rights and legitimate interests of all parties involved, including the applicable fundamental rights of the recipients of the service as enshrined in the Charter.’


In this respect, the DSA consolidates a content moderation model heavily based around providers of intermediary services, and in particular, very large online platforms, acting as lawmakers, law enforcers, and judges at the same time. They are lawmakers as the terms and conditions lay down what is permitted as well as forbidden in the platform. While there isn't a general obligation to patrol the platform, they must react to notices from users and trusted flaggers and enforce the terms if necessary. And, finally, they act as judges by attending to the replies from the user who uploaded illegal content and dealing with the parties involved in the dispute, notwithstanding the alternative means provided for in the DSA.


Rather than using the distinction between manifestly illegal content and ordinary illegal content and refraining from regulating other types of content, the DSA creates a governance model for moderation of all content in the same manner. While administrative agencies and judges can request content to be taken down, under Art. 8, the development of the further obligations mentioned above poses the following question: who is the main responsible to define what is illegal and what is legal? Are the existing institutions subject to checks and balances or rather private parties, particularly BigTech and very large online platforms?



7. The privatization of content moderation: the second (convenient?) invisible handshake between the States and platforms


As seen with many other areas of the law, policymakers and regulators have slowly but steadily transferred government-like responsibilities into the private sector and mandated their compliance relying on a risk-based approach. For example, in the case of financial services, banks, and other financial services providers have turned into the long arm of financial regulators to tackle money laundering and tax evasion rather than relying on government resources to do this. This resulted in financial services firms having to process vast amounts of personal data to determine whether a transaction is illegal (either because it is laundering criminal proceedings or avoiding taxes) with nothing but their planning and some general guidelines; if they fail in this endeavor administrative fines (and in some cases, criminal sanctions) can be expected. The result has been an ineffective system to tackle this problem (see here) yet regulators keep on insisting on this approach.


A little shy of 20 years ago, Birnhack and Elkin denounced the existence of an invisible handshake between States and platforms for the protection and sake of national security after the 9/11 terror attacks (see here). At that time, this invisible handshake could be considered by some as necessary to deal with an international security crisis. Are we in the same situation as we speak when it comes to dealing with disinformation and fake news? This is a valid question. The EU policy makers seems to be impressed by voices such as Facebook’s whistleblower Frances Haugen who wants to align 'technology and democracy' by enabling platforms to moderate post. The underlying assumption seems to be that platforms are in the best position to moderate content following supposedly clear rules and that 'disinformation' can be identified (see here).


Content moderation presents a challenge for States given the amount of content generated non-stop across different intermediary services, in particular, social media online platforms (see here). Facebook employs a sizable staff of almost 15,000 individuals as content moderators (see here) but also relies heavily on automated content moderation, authorized by the DSA proposal under Arts. 14 and 17, in particular, to mitigate mental health problems to those human moderators given the inhuman content they sometimes have to engage with. To put this in comparison, using the latest available numbers from the Council of Europe about the composition of judiciary systems in Europe (see here), the Belgian judiciary employs approximately 9200 individuals (-the entire judiciary dealing with issues about commercial law up to criminal cases-), a little more than half of Facebook’s content moderators.


As such, one can argue that courts could be easily overloaded with cases that demand a quick and agile solution for defining what is illegal or harmful content if platforms didn't act as a first-stage filter for content moderation. Governments would need to heavily invest in administrative or judicial infrastructure and human resources to deal with such demand from online users. This matter has been discussed by scholars (see here). The available options they see either (i) strengthening platform content moderation by requiring the adoption of judiciary-like governance schemes, such as social media councils as Facebook has done; or (ii) implementing e-courts with adequate resources and procedures suited to the needs of the digital age to upscale our existing judiciary.


8. The consequences of the second invisible handshake


The DSA seems to have, willingly or not, decided on the first approach. Via this approach, -the privatization of content moderation-, States do not have to deal with the lack of judicial infrastructure to deal with the amount of content moderation that digital society requires. As shown by our example, Facebook has an infrastructure, just on raw manpower available, that doubles that of a country’s judiciary, such as Belgium. This second invisible handshake between BigTech and States can be situated in the incapacity of States to deal with disinformation effectively with the current legal framework and institutions.


If the DSA proposal is adopted ‘as is’, then platforms would have a significant power over individuals. First, through the terms and conditions, they would in position to determine what is allowed to be said and what cannot be discussed, as provided for by Art. 12. Not only that but also any redress before decisions adopted by platforms would have to be first channeled through the internal complaint handling mechanisms, as provided for by Arts. 17 and 18, for example, rather than seeking judicial remedy. As it can be appreciated, the power scale has clearly shifted towards platforms, and by extension to governments, in detriment of end-users.


Besides this, the transfer of government-like powers to platforms contributes to avoiding making complicated and hard decisions that could cost political reputation. Returning to our opening example, the lack of a concrete decision from our governments regarding sensitive topics has left platforms in charge of choosing what is the best course of action to tackle a worldwide pandemic by defining when something is misinformation that can affect the public health and when something could help fight back something that is out of control. Not only that but if platforms wrongfully approach the issue, then they are exposed to fines for non-compliance with their obligations, although particularly very large online platforms can deal with the fines proposed under the DSA.


If the second invisible handshake is going to take place, the least we, as a society, deserve is that agreement is made transparent so that public scrutiny can oversight such practices and free speech can be safeguarded. In this respect, the DSA could have addressed the issue of misinformation and fake news in a more democratic manner. Two proposals:



9. Addressing disinformation more democratically to align 'technology and democracy'


Firstly, the distinction between manifestly illegal content and merely illegal content could have been extremely helpful in distributing the workload between the private and public sector in a manner that administrative authorities and judges would only take care of cases where authoritative legal interpretation is necessary. As such, manifestly illegal content, such as apology to crime or intellectual property infringements, could be handled directly by platforms and merely illegal content by courts or administrative agencies. In this respect, a clear modernization in legal procedures to deal with claims about merely illegal content would still be necessary to adjust the legal response time to the speed of our digital society. Content moderation is not alone in this respect but joins the ranks of other mass-related issues, such as consumer protection, where effective legal protection is missing due to the lack of adequate infrastructure to channel complaints.


Secondly, as for legal but harmful content, while providers of online intermediary services have a right to conduct their business as to how they see fit and therefore can select which content is allowed or not via terms and conditions, citizens do have a valid right to engage directly in the discussion of those topics and determine how to proceed with them. This is even more important as users themselves are the ones interacting on these platforms and that content is exploited by platforms to ensure that controversy remains on the table to ensure engagement (see here).


However, there is a possibility to deal with content moderation, particularly in the case of legal but harmful content, that avoids a second invisible handshake: community-based content moderation strategies (see here) where users have a more active role in the management of online content has proven to be successful in certain online platforms. While categories such as clearly illegal or illegal and harmful content do not provide much margin for societal interpretation, legal but harmful content could be tackled by citizens' involvement. In this respect, community-based approaches, while resource-intensive, allow for citizens to engage directly in the debate about the issue at hand.


While community-based content moderation also has its own risks, it could serve as a more democratic method than relying on platforms’ unilateral decisions and it might serve where judges and administrative agencies cannot go due to the legality of content. As noted by the Office of the United Nations High Commissioner for Human Rights, people, rather than technology, should be making the hard decisions but also States, as elective representatives of society, need to make decisions about what is illegal and what is legal (see here).


Our alternatives are only a part of a more complete program. Further work is needed at policy level to address fake news. Sadly, as it may be, the matter is not matured yet and ripe for regulation. While the phenomena of political actors actively spreading misleading information (the twittering lies told by political leaders) are well-known and discussed, the role of traditional news media, who are supposed to be the bearers of truth and factual accuracy, is less well understood. Traditional news media are in fact a part of the problem, and play a somewhat paradoxical role with respect to fake news and its dissemination. People learn about fake news, not via obscure accounts that Facebook and others can control, but through regular media that find it important for many reasons to report on disinformation. Tsfatie and others (see here) rightly ask for more analysis and collaborations between academics and journalists to develop better practices in this area.


We are also surprised by the lack of attention in the DSA proposal to the algorithmic and technological dimension that seems central to the issue of fake news. More work is needed on the consequences of algorithmic production of online content. More work too is needed to assess the performance of technological answers to technology.  How to organize a space of contestation in a digitally mediated and enforced world? Are the redress mechanisms in the DSA sufficient when the post has already been deleted, i.e. "delete first rectify after"?


Art credit: Frederick Burr Opper, via wikimedia commons

Monday, 10 January 2022

Update to the Commentary on the EU Charter of Fundamental Rights: Article 47 and the rule of law




European norms on the independence of the judiciary and the rule of law


The following is a precise of the most recent developments on the question of independence of the judiciary and the rule of law. It is to be read in conjunction with paragraphs 47.349 to 47.359 in S. Peers, T. Hervey, J. Kenner, and A. Ward (eds.) The EU Charter of Fundamental Rights: a Commentary (2021, Bloomsbury, second edition).


Manifestly irregular judicial appointments


Manifestly irregular judicial appointments


1.      The question of manifestly irregular judicial appointments has been addressed in case law of both the European Court of Human Rights and the CJEU. The former tribunal has confirmed that Article 6(1) ECHR is also applicable to proceedings before constitutional courts. It follows that a panel of a constitutional court which includes an individual irregularly elected to this body, and manifestly violating, inter alia, the said constitutional court’s previous judgments, cannot be said to be a ‘tribunal established by law’.[1] In two subsequent judgments, the European Court of Human Rights has further established that Poland’s two newly chambers created by Poland’s current governmental coalition do not constitute tribunals established by law within the meaning of Article 6(1) ECHR due inter alia to the undue influence exercised by the legislative and executive powers and the fundamental irregularities that adversely affected the procedure for appointing judges to these two new chambers.[2]


2.      The CJEU has equally held in its ruling in Case C-487/19 with reference to the second subparagraph of Article 19(1) TEU and the principle of primacy of EU law that the order by which a judge dismissed the action of a judge transferred against his will must be declared null and void if the appointment of the deciding judge ‘took place in clear breach of fundamental rules which form an integral part of the establishment and functioning of the judicial system concerned’ and ‘the integrity of the outcome of that procedure is undermined … with the result that that order may not be regarded as being made by an independent and impartial tribunal previously established by law’.[3] Most recently, the European Commission launched its first ever infringement action against a Member State on account of the unlawful appointments made to the national constitutional court in breach of the fundamental rules forming an integral part of the establishment and functioning of the system of constitutional review in the Member State, which led the Commission to conclude that the said constitutional court no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU.[4]


3.      It is now firmly established that compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State.  In consequence, a Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of judges.[5]


4.      Development of jurisprudence on manifestly irregular judicial appointments has not emanated exclusively from Poland. In this context, one must also take due note of the CJEU’s Grand Chamber judgment as regards the provisions governing judicial appointments in Malta in which the Court was asked inter alia to clarify whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding national laws conferring a decisive power to the Prime Minister with respect to the appointment of new judges.[6] For the Court, Article 47 of the Charter was not, as such, applicable to the dispute, because the plaintiff was not relying on a right conferred on it by a provision of EU law. The second subparagraph of Article 19(1) TEU was, by contrast, relevant and applicable as it sought ‘to ensure that the system of legal remedies established by each Member State’ guaranteed ‘effective judicial protection in the fields covered by EU law’.[7] For the first time, the Court also explicitly held that ‘the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of justice which are such as to constitute a reduction, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence’.[8] The Court did not, however, detect any regression as far as the situation in Malta was concerned, to the extent the process of appointing judges appeared to have been made more objective following the establishment of a sufficiently independent Judicial Appointments Committee.



Objective legitimate doubts with respect to independence


5.      The CJEU has clarified that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislative changes where it is apparent that these changes ‘are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the KRS [National Council of the Judiciary], to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law’.[9] This rule extends to appointment of judges to managerial posts and to the designation of prosecutors,[10] with the CJEU having held that Member State rules governing the personal liability of judges for judicial error can be inconsistent with Article 2 TEU and the second subparagraph of Article 19 (1) TEU.[11] 


6.      The same applies to the appointment of judges to disciplinary chambers. Such appointments are to contain safeguards to secure the independence of judges subject to disciplinary regimes,[12] seen from this objective standard. Further, in order to avoid any risk of a disciplinary regime  being used as a system of political control of the content of judicial decision, such a regime must include rules defining the forms of conduct which constitute a disciplinary offence,[13] and with sufficient clarity.[14] 


7.      In addition to this, too broader a discretion in the hands of an individual judge in the designation of the competent disciplinary tribunal to adjudicate on a given case is inconsistent with the requirement under EU law (notably Articles 19 (1) TEU,  47 and 48 of the Charter) for tribunals to be ‘established by law’.[15] The rights of the defence and adjudication within a reasonable time are also to be protected in such proceedings.[16]


8.      Finally, given that the Article 267 reference mechanism is a keystone of the EU judicial edifice, provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they made a reference for a preliminary ruling to the CJEU cannot be permitted.[17] Equally, objections to the effect that the referring body did not amount to a ‘court or tribunal’ under Article 267 TFEU for failure to comply with domestic requirements with respect to its composition will not be reviewed by the CJEU, given the established rule that ‘it is not for the Court, in view of the distribution of functions between itself and the national court, to determine whether the order for reference was made in accordance was made in accordance with the rules of national law governing the organisation of the courts and their procedure.’[18] The CJEU is therefore bound by an order for reference in so far as that order has not been rescinded on the basis of means of redress provided by Member State law.[19]


9.      Thus, a rule of national law cannot prevent a national court from exercising the discretion to refer under Article 267 TFEU, which is inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU. In consequence, a national court must be able to maintain a reference for a preliminary ruling after it has been made. A national rule the effect of which may inter alia be that a national court will choose to refrain from referring questions for a preliminary ruling to the Court in order to avoid having the case withdrawn from it is detrimental to the prerogatives thus granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism. Consequently, while it is in principle permissible for a Member State, for example, to amend its domestic rules conferring jurisdiction, with the possible consequence that the legislative basis on which the jurisdiction of a national court which has made a reference for a preliminary ruling has been established will disappear, or to adopt substantive rules that have the incidental consequence of rendering the case in which such a reference was made devoid of purpose, a Member State cannot, without infringing Article 267 TFEU, read in conjunction with the third subparagraph of Article 4(3) TEU, make amendments to its national legislation the specific effects of which are to prevent requests for a preliminary ruling addressed to the Court from being maintained after they have been made, and thus to prevent the latter from giving judgment on such requests, and to preclude any possibility of a national court repeating similar requests in the future.[20] Similarly, EU law precludes a national supreme court from declaring a request for a preliminary ruling submitted by a lower court unlawful on the ground that the questions are not relevant and/or necessary with EU law directly granting national courts the authority to disregard any national judicial practice which is prejudicial to their right to make a reference to the Court of Justice.[21]

Consequences following from the obligations enshrined in Article 19 (1) TEU


10.  Where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply relevant national provisions, even in the face of impediments to so doing under domestic constitutional law.[22] Interim relief must also be available under Member State law to guarantee the independence of the judiciary,[23] just as it is before the CJEU to secure compliance of a Member State with a judgment issued in consequence of a direct action instituted by the Commission for non-compliance with respect for the rule of law and the independence of the judiciary inconsistently with Article 2 TEU and the second sub-paragraph of Article 19(1) TEU.[24]  Pending a ruling on independence, a judge should not be appointed,[25] and any order issued by such a judge must be voided, in accordance with the primacy of EU law.[26]


11.   More broadly, the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law, meaning that the latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU.[27] Given that the Article 47 of the Charter has been held to have direct effect,[28] the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law.[29]  Under the second subparagraph of Article 19(1) TEU, every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection.[30]


12.  The remedial rights of Member States are protected, in the sense that the CJEU has ruled that it had jurisdiction to judicially review a resolution of the European Parliament on a proposal calling on the Council of the European Union to determine the existence of a clear risk of a serious breach of the values on which the European Union is founded.[31]

Photo credit: Razvan Orendovici, via wikicommons

[1]Xero Flor w Polsce sp. z o.o. v. Poland, CE:ECHR:2021:0507JUD000490718. For further analysis, M. Szwed, ‘What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal’, VerfBlog, 9 May 2021, <https://verfassungsblog.de/what-should-and-what-will-happen-after-xero-flor>; M. Leloup, ‘The ECtHR Steps into the Ring: The Xero Flor ruling as the ECtHR’s first step in fighting rule of law backsliding’, VerfBlog, 10 May 2021, <https://verfassungsblog.de/the-ecthr-steps-into-the-ring>.

[2] See Judgment of 22 July 2021, Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719 (the Disciplinary Chamber of the Poland’s Supreme Court is not a tribunal established by law); Judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, CE:ECHR:2021:1108JUD004986819 (the Chamber of Extraordinary Review and Public Affairs of Poland’s Supreme Court is not an independent and impartial tribunal established by law).

[3] Case C-487/19, W.Ż., EU:C:2021:798, paragraph 162. See also Opinions of AG Tanchev in W.Ż., C-487/19, EU:C:2021:289 and M.F., C-508/19, EU:C:2021:290.

[4] European Commission, Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, Press release IP/21/7070, 22 December 2021: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070.

[5] E.g. judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges) EU:C:2021:596, [51], (referring to judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, [63 to 65] and the case-law cited, and judgment of 18 May 2021,  Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393, [162]. For a transversal and comprehensive overview of the Court’s case law starting with ASJP, C-64/16, EU:C:2018:117 and ending with Repubblika, C-896/19, EU:C:2021:31, see L Pech and D Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case (Stockholm, SIEPS, 2021).

[6] Judgment of 20 April 2021, Repubblika v Il-Prim Ministru, C-896/19, EU:C:2021:31.

[7] [52].

[8] [65].

[9] Judgment of 2 March 2021, A.B. et al (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021: [153], [150] and [167]. See further judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [99 to 110]. See further on Poland’s K.R.S, the judgments of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982, and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.

[10] Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, [C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393

[11] Ibid, [224 to 241].

[13] Judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [134]. For further analysis, see L. Pech, ‘Protecting Polish Judges from Political Control: A brief analysis of the ECJ’s infringement ruling in Case C-791/19 (disciplinary regime for judges) and order in Case C-204/21 R (muzzle law)’, VerfBlog, 20 July 2021: https://verfassungsblog.de/protecting-polish-judges-from-political-control/

[14] Ibid [140] and the case law cited.

[15] Ibid [164 to 176]. See recently on the concept of ‘established by law’ the Opinion of Advocate General Bobek of 8 July 2021, C-132/20, Getin Noble Bank, EU:C:2021:557, judgment pending. For a critical assessment of this Opinion, see L. Pech and S. Platon, ‘How not to deal with Poland’s fake judges’ requests for a preliminary ruling: A critical analysis of AG Bobek’s proposal in Case C-132/20’, Verfblog, 28 July 2021: https://verfassungsblog.de/how-not-to-deal-with-polands-fake-judges-requests-for-a-preliminary-ruling/

[16] Ibid [187 to 214]. See further on the rights of the defence, in the context of the presumption of innocence with respect to termination of the secondment of a judge, the judgment of 16 November 2021, WB, Joined Cases C-748/19 and C-754/19, EU:C:2021:931 [88-89]

[17] Ibid [227] and the case law cited. See also the judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.

[18]  Judgment of 16 November 2021, WB and Others, Joined Cases C-748/19 to C-754/19, EU:C:2021:931, [44]

[20] Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [93 – 95], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982. See also [141] of the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.

[21] Judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.

[22] Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393 [242 to 252]. See also judgments of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [155 to 161], and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [81] and [140 to 148]; judgment of 21 December 2021, Euro Box Promotion e.a., C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, C:2021:1034. 

[23] Judgment of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [142]

[24] E.g. judgment of 6 October 2021, Poland v Commission, C-204/21 R – RAP, EU:C:2021:834; judgment of 27 October 2021 R, Commission v Poland, C-204/21 R, EU:C:2021:878.

[25] Judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798 [143].

[26]  Ibid, [155]

[27]  Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [143], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982.

[28] Ibid, [145].

[29] Ibid, [146].

[30] Ibid [114] and the case law cited.

[31] Judgment of 3 June 2021, Hungary v European Parliament, C-650/18, EU:C:2021426. See also the Opinion of Advocate General Bobek of 3 December 2020, EU:C:2020:985, and the Opinion of Advocate General Sánchez Bordona, Hungary v European Parliament and Council, C-156/21, EU:C:2021:974.