This package will walk you through the steps you can take to challenge national laws and equivalent measures if they fall under the scope of EU law and violate their provisions.
By the end of this learning package, you will:
- be familiar with the various legal avenues available to challenge national laws and equivalent measures;
- understand the differences between legal avenues at state level and EU level;
- be aware of the pros and cons of each avenue and able to assess which fits your needs best.
How/where to challenge national law incompatible with EU law
If you think that a national law or equivalent measures - as already approved or implemented in your EU Member State – violate civil society’s rights and are incompatible with EU law (including the CFR), you may consider challenging it. Here is an overview of the different possible options to do so:
EU Member States have an obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” (Article 19 (1), second para, TEU).
Litigation before national courts
You may invoke the violation of EU law – including the CFR – before a national court, based on the procedural rules available in the EU Member State, where you or your organisation are established and/or carry out your activities.
In other words, you can ask the competent national courts – either as a party or an intervenient, where allowed – to assess whether the contested provisions of the national law – or equivalent measures - are incompatible with EU law (for a list of examples, see the ECNL Learning Center module on how EU Law affects the space for civil society).
If the competent national courts find that the contested national law or equivalent measures are incompatible with EU law, they can:
- Directly dis-apply the national law or equivalent measures to the case brought before the court. This does not repeal the law as such, but sets a precedent that puts pressure on the competent legislative bodies to modify or repeal the law.
- Order the suspension or annulment of a decision taken by a public authority on the basis of the provisions incompatible with EU law.
- Where appropriate, order compensation for damage.
If the competent national courts believe that the case brought to their attention does fall under the scope of EU law, but they are not sure how such EU law should be interpreted or applied, they can request a preliminary ruling from the Court of Justice of the EU (CJEU) to clarify how the relevant EU law should be interpreted (Article 267, TFEU).
Please note that the EU Treaties do not empower individuals or organisations to bring a case directly before the CJEU to challenge national laws or equivalent measures deemed incompatible with EU law.
BUT: You and/or your organisation may ask the national court to request a preliminary ruling from the CJEU to clarify how the relevant EU law should be interpreted.
This referral is at the discretion of the courts, but it becomes an obligation for the national courts whenever there is no other judicial remedy available against their ruling (for example, the national court before which the case is brought is the highest court in the national legal system).
The CJEU preliminary ruling is directly binding on the referring national court. This means that, based on the CJEU judgment, the national court will have to:
- Assess whether the contested national law – or equivalent measures – are compatible with the EU law as interpreted by the CJEU;
- Establish the consequences for the case in question (that is, direct disapplication, annulment/suspension of subsequent decision, compensation, where appropriate).
Example of request for preliminary ruling to CJEU leading to binding interpretation of EU law:
- Coman and Others v General Inspectorate for Immigration and Ministry of the Interior: In this case, the Constitutional Court of Romania requested a preliminary ruling from the CJEU concerning the interpretation of the EU Citizens Rights Directive. The case regarded the refusal of the Romanian immigration authorities to issue a residence permit for the American same-sex spouse of a Romanian national. The same-sex marriage had been celebrated in Belgium (EU Member State), but Romanian law banned the recognition of same-sex marriages performed abroad. The EU Citizens Rights Directive grants the spouse of an EU citizen an automatic right of residence within the EU. The CJEU ruled that the term “spouse” in the Directive includes same-sex married couples. Therefore, even states like Romania that do not recognise same-sex marriages must automatically grant the right of residence to the spouses of EU citizens who have registered their marriages in one of the other EU Member States.
- Schmidberger, Internationale Transporte und Planzüge v Austria: In this case, the national court requested a preliminary ruling from the CJEU concerning the interpretation of the TEU provisions regulating freedom of movement of goods (now Articles 30, 34 and 36, TEU). The case regarded the Austrian owner of a transport freight business who had sued the government for not acting to disperse an environmental protest group that had blocked the cross-border traffic in the Tyrol motorway for 30 hours. The CJEU ruled that Austria had indeed breached its obligations under EU law by allowing the protest to block the motorway and hinder the free movement of goods, but in this case the restriction of free movement of goods was justified by the need to protect the fundamental rights of expression and peaceful assembly of the protesters and that such restriction had been strictly necessary and proportionate, since the duration of the motorway blockade had been limited in time.
To view the chart on the litigation process before national courts, click here.
Complaints/referrals to competent national human rights bodies
You and/or your organisation may also consider making complaints or raising the issue with relevant human rights bodies within your EU Member State.
These are state bodies, independent of governments, mandated by national law (and in some cases also by the Constitution) to promote and protect human rights in the country. These bodies include, for example:
- National Human Rights Institutions;
- National Ombudspersons;
- National Equality bodies.
Depending on their respective mandate, such bodies may address national authorities – or in some cases even take them to court themselves or support individuals/organisations in their litigation before national courts. Some of these bodies are fully compliant with the so-called UN Paris Principles. This means that their mandate includes, among other functions, the following competences:
- Monitor violations of human rights and reporting to the public, the parliament and international human rights bodies;
- Advise the government, the parliament and any other competent body on specific violations, on issues related legislation – including draft laws – and their compliance with international human rights instruments;
- Support individuals to enforce their rights through litigation and legal assistance;
- Hear complaints, investigate, and issue binding decisions and sanctions (“quasi-judicial” competence).
For an overview of the different types of national human rights bodies and their respective competences, visit the websites of the European Network of Human Rights Institutions (ENNHRI) and the European Network of Ombudsmen.
Complaints/referrals to other national specialised bodies
Depending on the topic covered by the contested national law or equivalent measures, other bodies may also be competent to receive your complaint and assess whether such laws or measures interfere with your rights and freedoms under EU law and the CFR.
These bodies may include, among others:
- National Data Protection Authorities;
- National Competition Authorities;
- National Consumer Protection Authorities.
For an overview of the different types of such authorities, see our Resources below.
You and/your organisation may also consider bringing a violation of EU law – including the CFR – by an EU Member State directly to the attention of EU institutions.
Under the right to good administration, every individual has the right to be heard and to have their affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the EU (Article 41, paras 1 and 2(a), CFR).
Complaints to the European Commission
You can submit a complaint (either via post or online) to the European Commission about any national law or equivalent measure – or even the absence of a law/measure – that you think is against EU law and violates your rights and freedoms as protected by the CFR.
The competent department of the European Commission will carry out a preliminary assessment of your complaint and will determine whether it concerns a possible breach of EU law by a Member State. Under the right to good administration, the European Commission is obliged to reply to your complaint to explain the action taken – or lack thereof – and to give reasons for their decision (Article 41, para 2(c), CFR).
What the European Commission cannot do:
The European Commission does not have the competence to:
- decide on the following complaints:
- against acts by private bodies/individuals that do not involve national authorities ;
- concerning matters that do not fall under EU law (see the ECNL Learning Center module on how EU Law affects the space for civil society)
- against countries that are not EU members;
- against other international organisations (for example, NATO, UN, Council of Europe).
- offer individual redress or compensation for damages;
- review decisions made by national authorities in individual cases.
What the European Commission will not do:
The European Commission will not investigate complaints in these cases:
- There is no apparent breach of EU law;
- There is a breach of EU law but the Commission considers that this is better dealt with at national level (for example, by being brought before the national courts ort the competent national bodies);
- The matter is already being addressed by the national authorities responsible or by the Commission itself.
Examples:
- The issue is about an individual situation, where EU law is not applied correctly, but this does not point to a widespread systemic problem with the application of such law -> in these cases, usually the Commission directs the complainants to the national courts ort the competent national bodies – unless there is no effective legal protection available.
- A national court has already requested a preliminary ruling on the same issue to the the CJEU -> in these cases, the Commission refers to the CJEU pending ruling.
- The issue is about the incorrect transposition of a EU directive into national law and the Commission is already looking into this.
- The issue is about a legislative proposal on which the Commission has already taken a position.
Launch of infringement proceeding against an EU Member State
If the European Commission, after investigating the complaint, decides to take legal action against an EU country that fails to properly abide by EU law, they will start a so-called infringement proceeding (or procedure).
This procedure is structured in different stages, each ending with a formal decision:
STEP 1: Letter of formal notice
The European Commission sends a letter of formal notice requesting further information to the country concerned, which must send a detailed reply within a specified period, usually 2 months.
STEP 2: Reasoned opinion
If the European Commission, after having assessed the Member State’s observations, concludes that the country is failing to fulfil its obligations under EU law, it may address to the Member State a reasoned opinion, that is, a formal request to comply with EU law. It explains why the Commission considers that the country is breaching EU law. It also requests that the country informs the Commission of the measures taken, within a specified period, usually 2 months.
STEP 3: Referral to the CJEU
If the country still does not rectify the violation, the European Commission may decide to refer the matter to the CJEU.
Furthermore, if the Commission believes urgent action is needed, it can ask the CJEU to impose interim measures against that Member State (Article 279, TFEU), while the main infringement case remains pending.
The CJEU President or the Vice-President decide whether to grant the interim measures or not.
Example of request and granting of interim measures:
European Commission v, Poland C204/21 R: In this case, the European Commission applied to the CJEU for interim measures against Poland, requesting to suspend the implementation of legislative provisions that reformed the Judiciary and undermined its independence from the government. The CJEU granted such measures and ordered the immediate suspension of the implementation of these legislative provisions.
Since the Polish government failed to comply with such measures, the European Commission subsequently applied again for the imposition of penalties against Poland.
The CJEU granted the European Commission’s request and ordered Poland to pay the European Commission a periodic penalty payment of EUR 1 000 000 per day until the State complied with the previous interim measures.
STEP 4: CJEU ruling
If the CJEU judgement confirms that the Member State has infringed EU law, the national authorities must take action to comply with the CJEU judgment. Affected individuals and organisations affected by the breach of EU law established by the CJEU will have to take a case to the competent national court, relying on the CJEU judgement.
STEP 5: Sanctions
If, despite the CJEU judgment, the Member State still does nor rectify the situation, the European Commission may refer the country back to the CJEU and propose the imposition of financial penalties, which can be either a lump sum and/or a daily payment. These penalties are calculated considering:
- the importance of the rules breached and the impact of the infringement on general and particular interests;
- the period the EU law has not been applied;
- the country’s ability to pay, ensuring that the fines have a deterrent effect The actual decision on whether to impose financial penalties and on their amount rests with the CJEU.
Please note: The CJEU ruling declares whether there has been an infringement of EU law but does not annul the national law/equivalent measures declared incompatible with EU law.
This means that ultimately it is the EU Member State that will have to take the necessary actions to remedy the violation and comply with EU law.
This also means that if you wish to receive compensation against the State on the basis of the CJEU ruling, you will still have to take the case to the competent national court.
Examples of infringement proceedings against EU Member States for violation of EU law affecting civic freedoms:
European Commission v. Hungary (Case C78/18): The European Commission opened an infringement procedure against Hungary arguing that its law on transparency of organisations receiving funding from abroad violated the EU freedom of movement of capital (Article 63 TEU) as well as Articles 7 (Respect for private and family life), 8 (Protection of personal data) and 12 (Freedom of assembly and association) of the CFR. The CJEU ruled in favour of the European Commission and declared that the provisions of the Hungarian Transparency Law introduce discriminatory and unjustified restrictions on foreign donations to CSOs. Here is a summary of the European Commission and CJEU’s arguments.
Article 7 TEU procedure
As we have seen above, the European Commission can start an infringement proceeding against an EU country that fails to comply with EU law.
In cases where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission may even initiate a formal procedure to collect evidence, make an assessment, issue recommendations and eventually activate the so-called Article 7 (TEU) procedure if all else fails. This procedure may ultimately result in sanctions against the EU country, including the suspension of voting rights within the Council of the EU.
Who else can trigger the Article 7 procedure?
The European Commission is not the only actor who can start an Article 7 procedure. There are two other actors who are empowered to trigger it:
- One third of the EU Member States; or
- European Parliament.
What happens when one of the competent actors starts an Article 7 procedure?
The actor who decides to start an Article 7 procedure asks the Council of the EU to propose that the Council of the EU should vote to determine the existence of a “clear risk of a serious breach” in a Member State of the EU values proclaimed in Article 2 TEU. These values include respect for human rights, human dignity, freedom and equality and the rights of persons belonging to minorities.
Before making this decision, the Council must hold a hearing of the Member State in question and may make recommendations to it. At the same time, the European Parliament must consent to the Council decision by a two-thirds majority of the votes cast and an absolute majority of its component members (Article 354(4) TFEU).
If the Council of the EU determines the existence of such risk, it must also regularly verify” whether this risk continues existing despite the recommendations made to the Member State in question.
If the situation deteriorates and evolves into the actual “existence of a serious and persistent breach”, either the Commission or one third of the EU Member States – with the consent of the European Parliament – can request the European Council (EU heads of states/governments) to officially determine the existence of this breach. The European Council must vote unanimously (excluding the concerned EU Member State) to determine that such a breach exists.
If the European Council has determined that a serious and persistent breach exists, the Council of the EU can impose sanctions by qualified majority. Possible sanctions include suspension of voting rights in the Council.
To view a chart on Article 7 Preventive and sanctions measures, click here.
Please note: The highly political nature of this procedure – due to the type of actors involved, its length and the voting thresholds required – makes it very hard to be effective, especially in the short term.
Examples:
- On 20 December 2017, the European Commission initiated an Article 7 procedure against Poland over concerns about judicial independence and the rule of law. However, following several discussions and six hearings at the Council of the EU, the procedure ended on 6 May 2024, when the Commission withdrew its proposal. The Commission argued that, following the action plan and the commitments made by the Polish government, there was no longer a clear risk of a serious breach of the rule of law in Poland.
- On 12 September 2018, the European Parliament initiated an Article 7 procedure against Hungary over concerns about about the erosion of democracy, rule of law, and fundamental rights in the country. This procedure is still ongoing but so far remains pending in the Council. Several hearings took place but no recommendations have been adopted yet.
Rule of Law Conditionality procedure
The European Commission can initiate the Rule of Law Conditionality procedure against an EU Member State if it finds out that the State breaches the EU rule of law principles in a way that it:
- directly affects or seriously risks affecting the sound financial management of the EU budget, or
- affects the protection of the EU financial interests in a sufficiently direct way.
After detecting such breaches and assessing their threats to the EU budget management or financial interest, the Commission proposes appropriate and proportionate measures against the Member State. These measures can include, for example:
- suspension of payments/release of EU funds;
- interruption of EU funding programmes.
The Commission proposal must be submitted to the Council of the EU, which can adopt, modify or reject by qualified majority (not by unanimity, unlike in the Article 7 procedure).
If the rule of law breaches are resolved or the risks identified decrease, the Commission can propose that the measures should be adjusted or lifted altogether.
Cases of rule of law breaches fulfilling these criteria may include, among other things:
- Lack of judicial independence that may weaken a country’s fight against fraud and corruption;
- Lack of effective and/or transparent public procurement policies or control/audit systems;
- Conflicts of interest involving government-linked businesses.
Example:
On 18 September 2022, the European Commission proposed suspending €7.5 billion of EU funds for Hungary, due to severe weaknesses in the country’s judicial independence, lack of transparency in public procurement and conflict of interests involving government representatives and businesses.
On 22 December 2022, the Council of the EU decided to suspend only €6.3 billion of EU funds, acknowledging that in the meantime Hungary had undertaken some remedial measures but that such measures were still insufficient to resolve its systemic rule-of-law breaches. The funds suspended covered key cohesion funds, such as environmental, transport and territorial development programmes.
The Council’s final decision made the release of the funds conditional upon Hungary’s adoption of 17 milestones to remedy its breaches of rule of law, including key legislative reforms. As of mid-2025, such milestones have not been achieved, and most funding suspensions remain in force.
For more on the EU's rule of law principles, please read our Handbook on How to Use EU Law to Protect Civic Space – Part V.
If you want to send a complaint about a possible case under the conditionality regulation, the European Commission invites you to fill a complaint form available in 24 languages and e-mail it back.
Petitions to European Parliament
You and/or your organisation may also consider submitting a petition (by post or online via the European Parliament’s website) to claim the violation of your EU rights and freedoms as a CSO.
The petition may simply present a request, a complaint or observation concerning the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter.
For more information, visit the ECNL Learning Center module on Participation Mechanisms at the EU Level.
What else can you do if you approached either the European Parliament or the European Commission to claim that your rights were violated under EU law and you believe that these two bodies have not addressed your requests adequately or in a transparent manner?
Complaints to the European Ombudsman
You may contact the European Ombudsman if you approached the European Parliament or the European Commission to claim the violation of your EU rights and freedoms and consider that they have not dealt with your request properly or in a transparent manner.
The European Ombudsman is mandated by the EU treaties (Articles 24 and 228 TFEU) to investigate complaints from individuals and organisations about maladministration by the institutions, bodies and agencies of the European Union.
Cases of maladministration may consist, for example, of:
- failure on the part of the EU institution or body to act in accordance with the law or the principles of good administration, or in violation of fundamental rights;
- administrative irregularities;
- unfairness, discrimination or the abuse of power;
- failure to reply, refusal or unnecessary delay in granting access to information in the public interest.
However, before submitting a complaint to the European Ombudsman, you must first have contacted and tried to resolve the matter with the institution in question.
Find here more information on when and how you can make a complaint to the European Ombudsman.
- ECNL – Philea: Handbook – How to Use EU Law to Protect Civic Space – Second Edition (2023)
- European Network of National Human Rights Institutions (ENNHRI)
- European Network of National Ombudsmen
- European Union – How to make a complaint
- European Data Protection Board - List of national data protection authorities
- European Competition Network - List of national competition authorities
- EU Consumer Protection Cooperation Network - List of national consumer protection authorities
- European Commission – Report a breach of EU law by an EU country
- European Commission – Infringement proceeding
- European Council, Council of the EU - Article 7 procedure
- European Commission – Rule of Law Conditionality regulation
- European Commission - Communication Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092 on a general regime of conditionality for the protection of the Union budget
