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It doesn’t happen often that corporate governance litigation raises existential stakes. A prominent exception is the ongoing Musk v. Altman trial, where Elon Musk and Sam Altman dispute over the future of OpenAI, the world’s most famous artificial intelligence (“AI”) lab. The case concerns OpenAI’s transformation from a charity founded to develop AI for the benefit of humanity into a for-profit entity driven primarily by commercial interests.

The dispute hasn’t received much attention in the EU. Nonetheless, despite being held in a US district court over a US company and governed by US state and federal law, the case raises two fundamental issues with important implications for the ongoing European debate over AI regulation. The first is about the limits of regulation. OpenAI’s evolution shows that what determines whether AI development and deployment serve the public interest is not just what ends up on the market, but decisions made long before that, such as risk tolerance, research direction, and the willingness to slow down when uncertainty is high. These choices happen inside AI organizations, and (product) regulation cannot reach them. If Europe is serious about AI safety, rules about AI products à la AI Act are not enough.

The second question is about what safeguards can be put in place to steer the governance of AI companies towards the public interest. OpenAI’s story suggests that voluntary commitments, however well-designed on paper, are fragile when confronted with commercial pressure. If governance safeguards are to mean anything, they cannot depend solely on the goodwill of those subject to them.

The Evolution of OpenAI

OpenAI was founded in 2015 by Sam Altman and Elon Musk who allegedly joined forces due to their shared concern over the trajectory of AI research and development. According to Musk’s court filings, their goal was to start a “Manhattan Project” for AI which would be structured “so that the technology belongs to the world via some sort of nonprofit.” Failing to obtain support from the US government, Altman and Musk decided to start OpenAI as a charity supported by philanthropic donations. The mission of the initial OpenAI was “to provide funding for research, development and distribution” of AI, with the commitment that “the resulting technology will benefit the public” and not “the private gain of any person.”

In the coming years, it became clear that the costs of AI research could not be financed by donations alone. In an effort to maintain the nonprofit commitment and attract funding, the organization adopted in 2019 an innovative structure: it added a capped-profit subsidiary to attract profit-oriented investors while still maintaining all governance rights within the initial charity. The rationale behind the capped-profit structure was to show that the organization’s main purpose was still research for the public benefit, and that investors could only derive limited profits (although the limit was generously set at 100x their investment).

On paper, this structure seemed to be a masterpiece of legal engineering, seemingly able to do what no pre-existing US corporate form does: reconciling profits with a strong commitment to a public mission. In reality, it turned out that there is only so much corporate governance mechanisms can do to tame profit motives. The first stress test came in 2023, when the board of directors of the charity decided to fire Sam Altman from his CEO role over integrity and safety concerns. In the timespan of a couple of days, due to pressure from Microsoft, it was the board that had to resign, and Altman was reinstated in his executive position.

Ever since, OpenAI’s structure has moved closer and closer to an orthodox for-profit organization. The former capped-profit subsidiary has become the company’s main operating entity and has been converted into a Public Benefit Corporation (PBC), a conventional corporate form capable of raising large-scale capital without any constraints on investors’ returns. The initial nonprofit has become a foundation that formally still holds the right to appoint all the board members of the operational arm. Nonetheless, given the former charity’s failure to rein in profit motives, there is little reason to believe the foundation will fare better.

The consequences of OpenAI’s organizational transformations are palpable. According to the 2025 Stanford foundation model transparency index, OpenAI had fallen from second to second-to-last among major AI companies in research transparency. In January 2026, it announced plans to introduce advertising into ChatGPT, and its CEO floated the idea of an erotic mode for verified adults, a proposal which was eventually shelved after internal pushback. One month later, the company disbanded its alignment team, despite being repeatedly sued for releasing its models to the market too quickly and without adequate safety testing. Several lawsuits claim that ChatGPT had encouraged users, including teenagers, to commit suicide.

Taken together, these developments paint a consistent picture: once the governance commitments proved fragile, commercial logic took the front seat, with clear implications for the general public. This calls into question OpenAI’s willingness to make the right decision the day it is confronted with a more radical choice, such as the release of a model that can automate (even more) white collar jobs, upend financial markets, or, in the extreme scenario, threaten our survival as a species.

The Trial and the Stakes

Musk left OpenAI’s board in 2018, officially citing a conflict of interest with his role at Tesla, although subsequent reporting suggests that his departure followed a disagreement over the organisation’s direction. He is now suing OpenAI on the basis that he contributed tens of millions of dollars, as well as advice and recruiting support, on the understanding that OpenAI would honour its founding mission of developing safe AI for the benefit of humanity. The remedies he seeks are far-reaching: the removal of Altman as CEO and the unwinding of the restructuring that converted OpenAI’s operational arm into a for-profit entity.

Some have framed the case as an eleventh hour opportunity to take seriously the question of what kind of organizations should be entrusted with developing AI. If that sounds like too big a question for a district court, it is because it is. The presiding judge has said as much, stating explicitly that “this is not a trial on the safety risks of AI.” Legally, the dispute is about an alleged breach of charitable trust: Musk argues that the donations he and others made were given on the understanding that OpenAI would remain a public interest organization, and that converting to a for-profit structure diverted those charitable assets to private gain.

The case has little chances of success. First, it is a jury trial, and Elon Musk is hardly a good trustee for this cause. His concerns over AI safety are hard to swallow, primarily because his own AI company, xAI, routinely makes headlines for its flagship chatbot Grok producing extremist content, generating disinformation, and failing to filter illegal material such as child sexual abuse (also known as “CSAM”). Second, when OpenAI converted the capped-profit subsidiary to a PBC, it had to obtain approval from the Attorney Generals of Delaware and California, the states where OpenAI is incorporated and has its main operations. Both blessed the operation, subject to minimal requirements. Given their approval, it is unlikely that the Oakland district court will go in a different direction.

Why This Matters for Europe

Even in the likely scenario that Musk loses, the case delivers an uncomfortable lesson that Europe cannot afford to ignore: neither regulation nor private ordering is sufficient to ensure that AI development serves the public interest.

The European conversation on how to limit the risks of AI development and deployment and to ensure that the technology is in line with fundamental rights and societal interests has so far focused exclusively on imposing regulatory constraints. Europe has received much criticism for the AI Act, a regulation targeted at limiting the risks of AI products placed on the internal market, and is in the process of trying to reach a deal on how these rules could be watered down so as to preserve the continent’s competitiveness in the AI race.

Musk v. Altman should remind us that regulatory intervention addresses only part of the problem. OpenAI’s story shows that a commercially-oriented AI lab has little incentive to delay or refrain from putting products on the market, and that no product regulation, however well-designed, can change that calculus. The decisions that matter most for AI safety are not made at the point of product release; they are taken upstream, in iterative choices about what to research, what to deploy, and when to slow down. By the time rules are drafted, negotiated, and enforced, the technology has moved on.

But OpenAI’s story also shows that voluntary governance commitments designed through private ordering do not work either. When commercial pressures build, those commitments give way, as OpenAI’s trajectory makes clear. What is needed is a third pathway: enforceable governance safeguards, embedded within AI organizations and backed by meaningful legal obligations, that oversee research and deployment decisions as they are being made, not after the fact. Concrete mechanisms worth exploring span a spectrum of interventionism: from mandatory internal safety boards featuring independent experts, to regulator-appointed observers embedded within AI organizations, to more assertive instruments such as golden shares granting public authorities a direct stake in governance decisions. All deserve consideration, and if the EU is serious about AI safety, the time to start is now.

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The Bundesgerichtshof – Germany’s highest court of civil jurisdiction – has handed down its first ruling on private climate liability and dismissed the widely discussed lawsuits against BMW and Mercedes. These strategic lawsuits were based on a very specific claim that is hard to replicate in other legal systems. Nevertheless, the rulings contain general considerations that, from a comparative law perspective, reveal a remarkable degree of judicial restraint.

A European first in Karlsruhe

On the 23^rd of March 2026, the German Federal Court of Justice (BGH) dismissed two climate lawsuits against BMW and Mercedes-Benz. The cases were brought by three private citizens, who are also the directors of the interest group Deutsche Umwelthilfe (DUH). They sought, unsuccessfully, a ban on the global marketing of passenger cars with internal combustion engines after October 2030.

With these rulings, the BGH has achieved a European first. While the Dutch and Italian supreme courts already issued interim rulings in corporate climate change cases, for the first time, a highest European civil court has issued a final judgment on the civil law mitigation obligations of companies. Although the legal basis and consequently the court’s reasoning are highly specific in nature, the BGH also touches upon some universal questions concerning the role of civil courts to rule on civil law responsibilities of corporations concerning their greenhouse gas (GHG) emissions. The ruling will therefore attract attention in other jurisdictions where corporate climate cases are also being pursued, such as Belgium, France, Italy, the Netherlands and Switzerland.

The private life of the Neubauer ruling?

The claim was based exclusively on the unlawful intertemporal interference with the claimant’s general right of personality protected by Sections 823(1), 1004(1) of the German Civil Code (BGB), which is based on the constitutional protection of the respective elementary right enshrined in Article 2(1), 1(1) of the German Basic Law (GG). This “Allgemeines Persönlichkeitsrecht” encompasses the right to privacy, freedom, and self-determination (¶ 4 of the BMW judgement).

The claimants’ arguments can only be understood against the backdrop of the Federal Constitutional Court’s (BVerfG) famous “Klimabeschluss” from 2021 (BVerfGE 157, 30 – Neubauer). In Neubauer, the BVerfG established the concept of “intertemporal guarantees of freedom”. The court held that the German legislature is obliged to establish a GHG reduction pathway that (1) leads to climate neutrality while adhering to the remaining German emissions budget, and (2) fairly distributes the opportunities to exercise the fundamental right to (emissions-related) personal freedom across generations (see Art. 20a GG in conjunction with § 1 s. 3 KSG). Current regulations that allow GHG emissions today already pose an irreversible legal risk to future freedoms, because any exercise of freedom involving GHG emissions will be subjected to more stringent restrictions in the future. Such burdens may not be disproportionately shifted onto future generations.

The claimants in the BMW and Mercedes-Benz cases tried to transpose this line of reasoning into private law, and hence the horizontal relationships between private actors. Their underlying reasoning is that at least in the medium term virtually all human activities generate GHG emissions, meaning that the restrictive effects of future reduction measures will be felt across almost all aspects of the claimants’ (and, of course, others’) social and personal lives (¶ 4, 19–21). By continuing to place passenger cars with internal combustion engines on the market, BMW and Mercedes-Benz would consume too much of the remaining carbon budget too quickly. This, in turn, increases the likelihood and necessity of future climate regulation, which would interfere with the plaintiffs’ general personality rights (¶ 24). This subsequently amounts to an interference with their rights already today. That is because the level of emission reductions achieved today determines the extent to which intrusive and restrictive measures will need to be taken in the future (hence the term “intertemporal”).

At first glance, the claim might appear unduly complicated, as the GHG emissions of the car manufacturers “only” constitute a derivative interference. The direct interference with the claimant’s general right of personality lies in the future measures taken by the legislature. Strikingly, the claimants have not asserted any other infringements of their rights caused directly by the defendants’ GHG emissions (e.g., property or health). In that respect, the claim fundamentally differs from claims in other European corporate climate mitigation cases, which primarily deal with the autonomous responsibility of corporations to reduce GHG-emissions, given the direct effects of these emissions on fundamental rights. The same is true for the lawsuit against VW backed by Greenpeace, which is currently being heard at the Court of Appeal. In the BMW and Mercedes-Benz case, however, the claimants for strategic reasons deliberately chose to solely focus on the possible incorporation of the Neubauer doctrine into private law.

Judicial restraint by the BGH

Although the BGH takes as its starting point that civil law may also provide protection against the harmful effects of greenhouse gas emissions by private actors (¶ 21), it sees no grounds for the proposed extension of the scope of the Neubauer doctrine. Several things stand out in the court’s reasoning, which at some points is very Neubauer-specific, and hence less relevant for other European climate cases. In relation to other, more universal points, however, some comparisons and lessons can be drawn.

A lack of legislative corporate carbon budgets

First of all, the BGH ruled that an advance interference-like effect is in principle not possible here, because there is no statutory carbon budget established for individual companies. According to the BGH, without such budgets, the legislatively allowed emissions today of the corporations do not inevitably lead to regulations tomorrow (¶ 28). Although this argument seems to follow the BVerfG’s case law closely, it also raises doubts. That is because in Neubauer, the BVerfG did in fact establish a carbon budget for the Federal Republic of Germany (something it later only refused to do for the federal states). It is therefore not necessary for a budget to be laid down explicitly in law. Rather, it is sufficient if such a budget can at least be derived from the facts and the legal framework. From this perspective, the BGH could possibly also have assessed the budget for BMW (which is not to say that such a budget can be established in the end, as the Shell-case illustrates, ¶ 7.91–7.96 of that ruling). Instead, the court merely pointed out that there is no statutory budgetary requirement, thereby adhering to a restrictive interpretation of the case law of the BVerfG and its own institutional competency to assess carbon budgets for (major) private emitters.

The meaning of governmental (in)action

Secondly, the BGH ruled that the responsibility for future GHG emission reductions and regulatory restrictions lies solely with the legislature. Therefore, any resulting interference with the claimant’s personality rights cannot be attributed to individual actors (¶ 44, 47). This argument is supported by compelling reasons: the car manufacturers have no formal political say in decisions related to future climate legislation. Still, the reasoning doesn’t quite sit right. One could also argue that through their GHG emissions corporations might factually and legally necessitate legislative action. Also, the pace of the corporation’s transition toward net-zero, does of course also influence the impact of such regulation.

Because of the specific (Neubauer) focus of the claims, these latter two elements, and the underlying question of the companies’ own responsibility, come across less clearly. For example, in the Shell-case, which is now pending before the Dutch Supreme Court, the Court of Appeal of The Hague ruled that corporations such as Shell do have an autonomous civil-law based responsibility to reduce GHG emissions, also because governments expect corporations to take this responsibility. The Court of Appeal in the Shell case has explicitly highlighted that this responsibility may be further shaped by human rights provisions and that its existence is not contingent on the acts of others, be it states or competitors (¶ 7.24–7.27 of that ruling). The BGH’s judgment – which, again, deals with a fundamentally different claim –, does not contain any such considerations. Instead, the court wants to leave the Neubauer doctrine exactly where it came from: in constitutional law. Also, the invocation of Article 8 ECHR, and the KlimaSeniorinnen ruling, did not change this (¶ 21).

The relevance of public law

An aspect that is more comparable, though, is the question to what extent civil law responsibilities can extend beyond what a company is already required to do under public law (so-called legalization or regulatory compliance defense). Notions on this question can be found in the Shell-case, the German RWE-case, and the interim rulings of the Cantonal Court of Zug and of the Corte Suprema di Cassazione. The BGH stresses as a starting point the autonomy of private law and that, accordingly, civil law obligations can go further than public law obligations (¶ 41). Yet, in this specific case it did not find a basis for accepting more far-reaching obligations.

First of all, the BGH stresses that an obligation to cease placing passenger vehicles with internal combustion engines on the market does not follow international treaties, such as the Paris Agreement (¶ 38). Secondly, such an obligation cannot be found in statutory law (especially not in the repealed Art. 22 of the Corporate Sustainability Due Diligence Directive (CSDDD); ¶ 58).

Thirdly, the BGH finds that BMW’s compliance with the requirements of the Emission Reduction Regulation 2019 (EU) 2019/631, which in essence considers intra-European registrations of combustion engine vehicles to be generally justifiable until 2035, precludes any further obligations. The court holds that this Regulation conclusively governs precisely the conduct at issue in the proceedings, not least because according to its recitals, it is explicitly committed to the Paris Agreement. Although the BGH’s dogmatic reasoning on this point is questionable, the additional room left for national private law obligations to phase out cars with combustion engines might indeed be limited. However, also here the specific claim played a central role: possibly, a claim focusing directly on BMW’s GHG-emissions, and the reduction thereof, would have led to a different assessment. For example, in the Shell-case, the court concluded that the civil courts can establish mitigation duties, precisely because the (European) legislator has not intended to regulate such obligations of companies exhaustively through instruments such as the European Emissions Trading System 1 and 2, the Corporate Sustainability Reporting Directive (CSRD), and the CSDDD, and thus has not sought to preclude supplementary private law duties of care (¶ 7.53 of that ruling).

The court’s institutional competence to assess corporate carbon budgets

Lastly, the BGH ruled it lacks the institutional competence to derive specific emission levels or reduction targets from the open wording of Article 20a GG. The bilateral framework of civil liability law would not be suited to the complex balancing of interests required for this purpose (¶ 45–46). Especially on this more universally approached issue, the BGH’s cautious stance, also compared to other European civil courts, becomes apparent.

On the one hand, there are good reasons for courts to exercise restraint in this type of climate litigation, which touches upon broad distributive questions. On the other hand, however, certain reservations can also be made regarding the BGH’s reasoning. The implicit message that, in the absence of statutory reduction targets, there is no role at all for the civil courts sits, in our view, uneasily with the core task of civil courts to adjudicate, on the basis of statutory law, the rights and obligations between the parties to the proceedings. This role must of course also be performed where such legal determinations have societal, political, and economic implications, potentially affect a wide range of conflicting interests, and involve technical and scientific knowledge.

In other cases and jurisdictions, civil courts have tended to argue along this line. Take, for example, the Shell-case. On the one hand, this judgment illustrates the challenges faced by civil courts when engaging with complex and uncertain knowledge regarding emission pathways and targets (¶ 7.76 of that judgment). In particular, the Court’s (unsuccessful) search for scientific consensus regarding the reduction percentage applicable to the oil and gas sector for Scope 3 emissions illustrates this point (¶ 7.82). On the other hand, the Court assumes as a starting point that civil courts do have the institutional competence to assess, on the basis of scientific knowledge and insights, the potentially applicable reduction targets.

Other examples can be found in the (Swiss) Holcim case, and the RWE case. In the Holcim case the court also took notice of the lower court rulings in the cases against Mercedes-Benz and BMW. A key defense by Holcim was that a claim based on the claimant’s personality rights seeking emissions reductions by Holcim does not belong in civil proceedings, but in the political arena (¶ 1.4 of that judgment). The Cantonal Court of Zug held, inter alia, that the political dimension of the case, its potential societal consequences, and the fact that numerous divergent third-party interests are at stake, do not affect the private-law character of the claims brought. It is not the court’s task to assess or determine climate policy in general (¶ 3.7.2), but rather to decide, on the basis of and within the framework of the private-law provisions invoked by the claimants, on Holcim’s obligations (¶ 3.7.3). Indeed, the court emphasized that it is the judiciary, and not the legislature, which is competent to rule on alleged violations of private law (¶ 3.7.5). Here too, of course, there are significant doctrinal differences with the Mercedes and BMW case. Nevertheless, the reasoning of the Zug court, like the court in the Shell case, shows on a fundamental level a greater sense of receptiveness for corporate climate change litigation.

Outlook

The BGH has rejected a very specific, strategically chosen mitigation claim based on the concept of intertemporality, which is unique to German constitutional law. Against this backdrop, the BGH’s judicial restraint becomes more understandable, although it can also be critically examined in light of the approaches taken by other European courts in relation to universal questions of the institutional competency of civil courts to engage with GHG-reduction claims. More climate cases will (most likely) follow for the BGH, which take a different legal route than has been taken in the BMW and Mercedes-Benz case. Yet, these cases will also raise foundational questions about the position of private law and civil courts in climate governance. These questions are not going to disappear; rather, they will become increasingly pressing. It is hard to imagine how the BGH could avoid dealing with them in the long term.

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Hungary is approaching the tenth anniversary of the Baka v. Hungary judgment of the European Court of Human Rights (ECtHR). The case concerned the premature termination of the mandate of Hungarian Chief Justice András Baka without legal remedy, shortly after the landslide victory of the Orbán-led Fidesz party in the 2010 parliamentary elections. Sixteen years after the removal of Chief Justice Baka, the execution of the judgment is still pending, and the landslide victory of the opposition Tisza party in the 2026 parliamentary elections put the removal of the incumbent chief justice back on the political agenda. In his victory speech held on the evening of the elections, future Prime Minister Péter Magyar called on Chief Justice András Zs. Varga to resign, claiming that, together with the President of the Republic, the Prosecutor General, and other leaders of key state institutions, he is a “puppet” of Orbán’s regime. Magyar also made it clear that they all “should leave voluntarily, otherwise they’ll be removed anyway.”

At first glance, the situation resonates with the Baka case: a politician representing a one-party sweeping constitutional majority steps up with the immediate demand to remove the incumbent chief justice. Yet, the context could not be more different.

In this blog post, I argue that the claim to end Chief Justice Varga’s mandate is legitimate and that the proper way to do so is by implementing the Baka judgment. My argument goes back to the old recipe of consistently upholding the principles of human rights and the rule of law, on which even a dark and least worthy chapter of the Hungarian judiciary could be brought to an end brightly and decently.

To understand why the proper execution of the Baka case in its entirety is intertwined with the removal of Chief Justice Varga, it is essential to see the radical changes in the Hungarian context between 2010 and 2026, mostly how overly politicised the role of the Chief Justice became, and how actively Chief Justice Varga contributed to suppressing the freedom of speech of Hungarian judges.

When a wise man points to the moon, only the fool looks at the finger

Back in 2011, when Chief Justice Baka was around the halfway point of his mandate, the ruling majority put forward a judicial reform that severely undermined judicial independence. Acting in his capacity as the president of the Supreme Court, after consulting the courts, he publicly criticised the planned reform on several occasions. Within a strikingly short period of time after raising concerns, he was removed from his office through legislative acts of constitutional rank, beyond judicial control. In its judgment, the ECtHR was wise enough to find that the premature termination of his office was a consequence of his criticism, and also claimed that his removal exerted a chilling effect not only on him, but on other judges, discouraging them from participating in public debate on issues concerning the independence of the judiciary. By establishing the causal link, the ECtHR made it clear that the removal of Chief Justice Baka is only the finger that points at something much bigger and more important: the political pressure on the freedom of expression of Hungarian judges. It is no coincidence that the Baka case is well-known and frequently cited for its doctrinal relevance of ensuring judges’ freedom of expression.

The execution of the judgment requires Hungary to take measures to guarantee the freedom of expression of Hungarian judges and ensure their irremovability, all key components of judicial independence, a fundamental constituent of democracy and the rule of law. As for the Chief Justice, the execution of the Baka judgment expressly requires granting judicial oversight of the decision on his removal. For nearly ten years, the Hungarian government was reluctant to execute the judgment, conveying deep concern from the Committee of Ministers of the Council of Europe. Now there is a historic moment for its implementation, and in the perfect interplay of all elements, granting legal remedy to the Chief Justice against the decision on his removal will allow Hungarian courts to deliver a strong domestic judgment on guarantees of the freedom of expression of judges. It would be a waste to miss this historic opportunity.

How to turn the unworthiness procedure into a meaningful one

Under the currently effective rules, the Chief Justice can be removed from office “if, due to any act, conduct, or omission, he has become unworthy of the position”. The procedure may exclusively be initiated by the President of the Republic and voted on by the Parliament by a two-thirds majority. Currently, the legislation leaves it to political actors, without the involvement of a judicial body, to launch the unworthiness procedure and take the final decision on removal. In this construction, the Chief Justice fully depends on the will of a political majority and, at the same time, is totally unaccountable to the judiciary, allowing him to commit gross breaches of administrative powers without any legal consequence. For a balanced proceeding on the unworthiness of the Chief Justice, the Baka judgment must first be executed to relieve the process from political pressure. An independent judicial body must be granted the right to review the political decision on the removal. By reshaping the rules of the unworthiness proceeding, the accountability of the Chief Justice can be shifted from a purely political one to a purely professional one.

This remarkable shift enables the Hungarian judiciary to say the final word on the worthiness of Chief Justice Varga and hold him accountable for all acts, conduct, and omissions committed since his appointment in 2020. The solution avoids the risk of retroactive legislation, as the modified procedural rules can take immediate effect. The legal ground of unworthiness has been there from the first moment of Chief Justice Varga’s appointment, just as Hungary’s obligation to execute the Baka judgment. If Chief Justice Varga hoped that the Baka judgment would never be executed and that his worthiness would always depend on the politicians who elected him, it is time to prove him wrong.

Unworthy from scratch

The motion on removing Chief Justice Varga should focus on his personal role in undermining the independence of Hungarian courts, including the circumstances of his appointment. Varga became Chief Justice in 2020, responding to a political call. He undertook the mandate under personalised legislation introduced a few months before his election, allowing him to gain the position of a judge and head of panel without an ordinary appointment procedure. He had no concerns about becoming Chief Justice without any judicial experience, despite all prior concerns raised by the CoE Commissioner for Human Rights and the European Commission. He neglected the well-reasoned objection of the National Judicial Council, which warned him that his appointment “does not respond to the constitutional requirement according to which the person sitting at the top of the court system shall be independent from other branches and shall appear as impartial to an external observer.”

His taking office has drawn criticism from several international organizations. The UN Special  Rapporteur on the Independence of Judges and Lawyers interpreted it as “an attack to the independence of the judiciary.” The European Commission considered it “not in line with European standards,” referring to a landmark judgment of the CJEU. The European Council held that it creates “risks of political influence over the top court”. The Venice Commission claimed that it poses a serious risk of politicisation of the supreme court. His decision to undertake the mandate despite all prior warnings on harming judicial independence resulted in immediate detrimental consequences for the reputation of the Hungarian judiciary. His personal responsibility in the politically biased appointment, against clear objections and in breach of European judicial standards, cannot be overlooked and should be evaluated within the unworthiness procedure.

The power of unaccountability

Varga started office in January 2021, and quickly became the most powerful actor within the Hungarian judiciary through a series of legislative reforms. During his term, he visibly did not forget that he was appointed by one political power and could be removed by them at any moment. From the perspective of judicial independence, his performance as Chief Justice constantly called into question his worthiness for the position. Immediately after taking office, he unlawfully appointed a politician, a former state secretary, to the bench and selected a government loyalist as deputy. He maintained an unlawful secondment practice for years. His power to modify the case allocation scheme enabled direct interference in the adjudication of politically sensitive cases, also allowing him to reshape the final composition of panels at the Supreme Court. A remarkable part of the judicial reform introduced in 2023 to unlock Union funds can be translated as a response to his first two years as Chief Justice.

It was clear from the first moment that Chief Justice Varga’s election was intended to enhance internal pressure on judges. Responding to this need, he actively contributed to curtailing the freedom of expression of judges. His public statements and activities in his different roles – as an academic, as a member of the National Judicial Council, as a judge and judicial leader – all pointed towards an overly restrictive interpretation of the Hungarian legislation that fully contradicts the spirit of the judgment delivered in the Baka case. His constant attempts to silence Hungarian judges included challenging the Ethical Code of Judges before the Constitutional Court for expressly entitling judges to speak out in professional matters. His intention to retaliate against critical opinions at the Kúria resulted in the unlawful removal of a senior scientific advisor for making “worrying statements in relation to the Supreme Court and its President,” banning the publication of a study criticising his administrative activities, and the unlawful suspension of judge András Kovács from his position as head of panel. He initiated an extraordinary inspection in connection with the publication of a judicial decision, which revealed the pardoning scandal that outraged the Hungarian public and led to the resignation of two leading ruling party politicians: the President of the Republic and the former Minister of Justice. He recurrently attacked independent service courts for protecting the freedom of speech of Hungarian judges, contributed to the conclusion of the “agreement” that forced reforms against pay raise, labelled their sweeping protest and the demonstration of Hungarian judges as a political activity and not only failed to protect judges from being listed, getting doxed or attacked by smear campaigns in the propaganda media, but took every occasion to retaliate against them for speaking out.

In a state of the rule of law, the Chief Justice would have faced immediate consequences for the above, but not in the past 16 years’ Hungary. Chief Justice Varga could commit attacks against individual judges, judicial bodies, and the independence of the Hungarian judiciary as a whole, knowing that he held formally unaccountable judicial powers.

But first, implementation

The principle of separation of powers requires that politicians refrain from calling on a judge to resign. By the same logic, judges should also never consider a call to resign that comes from a politician. Politicians should neither directly appoint judges nor force them to resign. They are there to shape the laws that secure the independence of the judiciary. Implementing judgments of the ECtHR is the best baseline for that. Reshaping the procedural norms of the unworthiness procedure, as required by the Baka judgment, is enough to ensure that Chief Justice Varga is held accountable for contributing to the systemic breach of judicial independence. As no case law exists for the unworthiness of a Chief Justice, the outcome of the proceeding is less predictable than that of a political decision. Yet, the real value of this solution is that it leaves the decision in the hands of those to whom it really belongs: the Hungarian judges, entitling them to speak out in protection of their independence on and off the bench, and empowering them to finally live up to the standards of judicial independence in Europe.

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