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The European Commission should cancel its decision to release 10 billion euros to Hungary in 2023, according to a senior legal adviser at Europe's highest court.
The EU Court of Justice is examining a claim by the European Parliament that the Commission violated its own rules when it released funds for Hungary in December 2023, funds that had been withheld due to concerns about the rule of law.
MEPs accuse the Commission of political expediency, arguing that the decision came on the eve of a crucial summit of EU leaders, at which the bloc desperately asked Hungarian Prime Minister Viktor Orbán to cooperate in sending aid to Ukraine.
The legal opinion from Advocate General Tamara Ćapeta, to annul the Commission's decision to freeze the funds, will guide the judges in their final decision, which will be issued within a few months. Advocates general are not judges, but legal advisors who assist the court in complex or unprecedented cases.
The opinion comes at a delicate time, with Orbán trailing in the polls ahead of an April election. EU leaders have for months been resolutely avoiding hitting out at Budapest or saying anything too critical of the prime minister, with the understanding in the Commission and among diplomats that any pressure on Orbán would turn into campaign material. The legal opinion “is not what we needed” so close to the vote, said an EU diplomat, who spoke on condition of anonymity to speak freely.
The commission declined to comment on the legal adviser's opinion. Orban also did not comment on the decision as he arrived for a summit of EU leaders in the Belgian village.
In-depth assessment
Capeta’s opinion says the Commission “misapplied” its own rule of law requirements when it handed over the funds before the Hungarian government’s reforms had been fully implemented. She also said the Commission failed to carry out “a proper assessment of the reforms related to the independence” of the Hungarian Supreme Court and the appointment of members to the Hungarian Constitutional Court, two key issues that Parliament said the Commission had not properly addressed.
The Advocate General also criticised the Commission for a lack of transparency, saying it failed to provide adequate arguments for the decision to unblock the funds. “The Commission owes an explanation not only to Hungary, but also to EU citizens in general,” the court said in a statement.
However, the advocate general did not support Parliament's accusations that the Commission abused its powers.
Rene Repassi, a German MEP and professor of EU law at Erasmus University Rotterdam and the University of Geneva, said a cancellation would mean the Commission would have to "demand the money back".
"If Hungary does not reimburse the costs, the Commission may reduce other costs, which Hungary is entitled to receive, by the amount that Hungary is obliged to reimburse," Repasi said.
When the time comes, the court's decision will set a precedent regarding the extent of the Commission's discretion when assessing rule of law violations by EU countries, particularly in the context of the Common Provisions Regulation (CPR), which sets strict conditions regarding fundamental rights and judicial independence for the distribution of EU funds.
The Commission defended itself during a hearing in October 2025, saying that Budapest had officially met specific technical "milestones" set for addressing concerns about judicial independence and therefore, the Commission should release the funds.
But the Advocate General's opinion agrees with the argument of Parliament's lawyers that the Commission should have taken a broader view of the systemic shortcomings of the rule of law in Hungary and that it incorrectly assessed the fulfilment of the objectives of the judicial reform.
Green MEP Daniel Freund said the advocate general's opinion "was a harsh rebuke to the Commission. If the court follows this reasoning in its final decision, it would mark a victory for the rule of law in Europe."
He added that the opinion “confirms what the European Parliament has long denounced: The release of 10 billion euros to the Hungarian government was illegal and politically motivated. By acting in this way, the Commission has jeopardized its own credibility.”
“EU funds should only be distributed when the beneficiary upholds the law, European values and the rule of law. We expect the European Commission to adhere to these principles in the future. It must stop allowing itself to be manipulated by autocrats like Viktor Orbán.”
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