In the sixth episode of our rule of law podcast #DefendingTheDefenders with Deutscher Anwaltverein, we talk about the European Union and the state of the professional freedom of attorneys there. We want to hear from attorneys professional organisations as well as from regulators, and have spoken to both sides.
Nothing has changed since the last time there was a debate regarding the relationship between telecommunication providers and online content providers. Nevertheless, the European Commission is willing to take a massive gamble and entertain the possibility of regulation to oblige online services to pay their "fair share" towards increased bandwidth consumption. This regulatory shift could risk an Internet collapse in Europe.
The EU is faced with a Member State where all of its top courts are now unlawfully composed; where every single judicial appointment procedure since 2018 is inherently defective due to the involvement of an unconstitutional body; and where core EU and ECHR requirements relating to effective judicial protection and the fundamental right to an independent court established by law have been held “unconstitutional” in 2021 and 2022 by the body masquerading as Poland’s Constitutional Tribunal.
The Digital Services Act requires EU member states to name a “Digital Services Coordinator” (DSC) to coordinate national regulators involved in platform oversight. But the DSCs are more than just “coordinators,” as they have to fulfill specific oversight tasks themselves. That is why member states should resist the temptation to build a small-scale coordinator and instead build a strong DSC with skills in data analysis, community management and flexible case-based work.
The Digital Services Act has landed on an increased centralization of its enforcement powers in the hands of the European Commission. The rationale behind this centralized enforcement is understandable, particularly in light of the experience with GDPR enforcement. At the same time, it raises crucial questions about the future recurrence of such centralizaion in the Commission's hands, and the separation of powers more broadly.
The Digital Services Act (DSA) has finally been published in the Official Journal of the European Union on 27 October 2022. This publication marks the end of a years-long drafting and negotiation process, and opens a new chapter: that of its enforcement, practicable access to justice, and potential to set global precedents.
There are three major academic and political misconceptions concerning the EU rule of law crisis. The first mistake is already in the denomination, as the name ‘rule of law crisis’ is actually misleading, the second is to believe that ‘the EU does not have the necessary legal tools’, and the third is to conceive it as a ‘crisis only in the Member States affected’. These misconceptions make the crisis look narrower and less threatening than what it actually is, while also offering excuses for inaction.
In order to get rid of “classical” border controls between Member States, the EU Commission is trying to incentivise Schengen States to substitute them with so called “alternative measures”, for example the enforced use of police powers and monitoring and surveillance technologies. These technologies and their impacts confront us with the question what it means to move “freely” within an area of freedom, security and justice without internal frontiers.
The Hungarian government is trying to convince EU institutions that it is taking adequate steps to ensure proper spending of EU funds going forward. At the center of this effort is a new ‘Integrity Authority’. The law establishing this authority, Bill T/1260, just passed the Hungarian Parliament on 3 October 2022. We have carefully read the laws enacted so far that establish a new anti-corruption framework and can confidently say that neither the Commission nor the Council should accept what the Hungarian government is offering because the proposed changes do not begin to alter business as usual in Hungary. In this blogpost, we will analyze the ‘Integrity Authority’ which forms the centerpiece of the government’s program, showing that it is not independent from the government nor are its powers real.
Since 27 April 2022, Hungary has been under the Rule of Law conditionality mechanism, introduced by the Conditionality Regulation. After various debates and considerations, and in the light of the blackmailing potential of the Hungarian prime minister, the Regulation, in a weaker form than initially proposed, works as a preventive tool for ensuring the protection of the EU budget and sound financial management of EU resources. The Hungarian government has a record of misleading (and betraying) the European Union, and apparently, it is not different now.
13. September 2025
Giovanni Capoccia
12. September 2025
Anne Peters
12. September 2025
Anne Peters