Institutions powerless against illiberal Hungary

By Jack Lawrie

Human rights law and media freedom have been in a continuous decline in Hungary, undermining the authority of the European Union. According to the Human Rights Watch organisation, changes to migration law have led to the vast majority of refugees and asylum seekers facing detention and violence at the border. Press freedom is being diluted by unfair court rulings and tax laws targeting media companies. As Viktor Orbán’s democratically-elected Fidesz government continues to backslide toward illiberal principles, the EU has found itself not only unable to meaningfully address these issues, but has been undermined from within by a lack of cohesion within its institutions.

Potential EU actions against Hungary

The European Commission held a meeting on the 13th of January, where it was speculated they would come to a decision on how to deal with breaches to the rule of law in Hungary. Perhaps they would discuss the motion passed in European Parliament on the 16th of December calling for the Commission to start seriously monitoring the situation. Instead, their discussions appear to be ignoring Hungary for the time being, focusing instead on it’s more economically and politically influential partner-in-crime, Poland. Frans Timmermans, first vice president of the Commission announced they would initiate the first step of the EU’s new rule of law framework by monitoring Poland.

“We are taking this step in light of the information currently available to us, in particular the fact that binding rulings of the constitutional tribunal are currently not respected, which I believe is a serious matter in any rule of law dominated state” said Mr Timmermans.

This rule of law mechanism is the result of a recent effort in 2014 by the Commission to create a middle-ground solution for rogue member states between imposing political pressure and the invocation of article 7 of the Treaty of the European Union, which has become known as the Commission’s “nuclear option”. Article 7 states that in the case of a serious and persistent breach to rule of law and a unanimous decision in the Council, certain rights of the Member State in question deriving from the application of the Treaties may be suspended, including the voting rights of the representative of the government of that Member State in the Council.

Historically, the Commission has never initiated an Article 7 procedure, on the grounds of being too disproportionate and politically damaging to ever be used and ended up being described as a ‘nuclear option’. According to Middlesex University European Law Professor Laurent Pech, this led Article 7 to lose its dissuasive effect and national authorities of EU member states have realised that they have little to fear should they engage in serious breaches of EU values and establish, for instance, an ‘illiberal’ regime.

“Originally, Article 7 was inserted into the Treaty on European Union to send a message to candidate countries that admission to the EU club requires strict compliance with EU values such as the rule of law and it was hoped that its potential harsh sanctions regime would prevent any form of democracy backsliding post accession”, Professor Pech said. “As we all can see, it hasn’t worked out.”

Despite the lack of precedent for Article 7 having any meaningful impact in the past, the European Parliament ruled in its December motion that conditions for activation had been fully met in Hungary, and called on the Commission to evaluate the situation there. This conclusion had already been reached by numerous law scholars, based on constitutional amendments by the Fidesz government that allowed them to influence court decisions by appointing party-approved judges and the systematic replacement of independent checks and balances in the judicial system.

A motion was ruled in the European Parliament on December 16 calling for further action against Hungary – Flickr CC
A motion was ruled in the European Parliament on December 16 calling for further action against Hungary – Flickr CC


Institutional divide

There has been a consistent rift between Parliament and the Commission over how to address the situation. A few weeks before the December resolution passed, Justice Commissioner Vera Jourová said in a debate with MEPs that the Commission acknowledged the discrimination against asylum seekers and Roma in Hungary, allegations of corruption in the public procurement sector and the undermining of press freedom, but were still not willing to declare a threat to the rule of law.

Dr Tobias Lock, EU Law Lecturer at the University of Edinburgh said the European Parliament can’t force the Commission to act on these matters, as they are independent from one another.

“The European Parliament have probably become quite assertive in the last couple of years, as their powers have grown”, he said. “So they are making these political demands directed at the Commission, but you can’t infer from those demands by one body that anything has changed.”

“The European Parliament tends to be more integrationist than the other institutions. It tends to be more concerned with the common will of the EU as opposed to the interests of individual member states.”

It’s not all one way though. The European People’s Party group has been quite protective of Hungary in the European Parliament, as it heavily represents the Hungarian national government in Parliament. Shortly after Commissioner Jourová made her statement arguing against the existence of a threat to the rule of law in Hungary, Hungary’s EPP representatives issued a statement decrying the vote as an attack against the member state. They claimed the real reason behind this was an attack by the Left against Hungary’s “responsible immigration policy”.

Viktor Orbán speaking with Christian Democrat party members at the 2013 EPP summit – Flickr CC
Viktor Orbán speaking with Christian Democrat party members at the 2013 EPP summit – Flickr CC

While they weren’t able to block the vote from coming to a resolution, the EPP has shown a willingness to impede action against Hungary and Poland in the European Parliament. Ultimately however, the power and the obligation to protect the rule of law in Europe lies with the Commission, who have proven unwilling to enact serious action against Hungary. Given that pre-article 7 requires a unanimous decision, and Hungary has publicly declared support for Poland in the event of any voting sanctions (with the implication that Poland would do the same for them if it came to that), it is becoming harder for the EU to make any kind of meaningful preventative effort against either member state.

Failure of the EU framework

Dr Lock said there is a serious enforcement problem in the EU. “When you look at the criteria for becoming a member state, you have to show that you respect the rule of law”, he said.

“If you’re deemed fit to be an EU member state, there is nothing that prevents you from falling back to a lower standard of democracy and human rights protection.”

The EU’s most recent efforts to address this issue have been to tighten the restrictions on candidate member states. However, this does nothing to address the possibility of a country backsliding once it becomes a member state, as has been occurring with Hungary. This has raised concerns that the EUs continued inaction against Hungary is creating a slippery slope for other member states to follow, as can be seen in the developments in Poland.

Professor Pech suggested the lack of EU action against Hungary has rendered an ‘Orbanisation’ of Europe possible hence the recent calls for the EU Commission to act decisively with respect to Poland to avoid a domino effect: “The EU legal system is based on the premises that all Member States adhere to the same values, which is why, for instance, national judicial decisions can be enforced anywhere in the EU. However, when one national system ceases to be governed by the rule of law or democratic principles, the whole framework is affected and this situation threatens the exercise of the rights granted to all EU citizens regardless of where they reside in the EU”.

“In other words, if a country stops being a democratic government, then we can assume that EU law would stop being enforced effectively and equally, which may lead other EU countries to refuse to recognise judgements from jurisdiction of that country”.

When the democratic decline in Hungary began, the EU lacked a sufficient mechanism to address the problem beside the “nuclear option” of article 7. It now has an alternative in the form of the rule of law mechanism, but in leaving Hungary alone for so long, it has allowed the threat of unchecked illiberalism to spread into Poland and potentially set a dangerous precedent. Even with the decision to undergo the rule of law framework in Poland, the Commission has refused to do anything more than debate and monitor the situation in Hungary, while the other institutions lack meaningful jurisdiction over protecting the EU rule of law.

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