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On 12 September 2018, the European Parliament will vote on a proposal to trigger Article 7 of the Treaty of the European Union against Hungary. It is a proposal based on a report prepared by MEP Judith Sargentini (Greens, Netherlands) that recommends to activate Article 7 TEU against Hungary and call on the Council to determine the existence of a clear risk of a serious breach of the values on which the European Union is founded. Article 7 contains both a preventive and a sanctioning mechanism against Member States’ violations of human rights. Sanctions were first introduced by the Treaty of Amsterdam and renewed and enhanced with a preventive mechanism in the Treaty of Nice, to be later confirmed without no changes in the Treaty of Lisbon. This vote may be the very first, and long awaited step from an EU institution to discipline Hungary for its systematic violation of the rule of law, democracy and fundamental rights.

 

The Sargentini report

The main concerns formulated by Ms. Sargentini in her report relate to the functioning of the constitutional system, the independence of the judiciary and of other institutions, corruption and conflicts of interest, privacy and data protection, freedom of expression, academic freedom, freedom of religion, freedom of association, the right to equal treatment, the rights of persons belonging to minorities (including Roma and Jews), the fundamental rights of migrants, asylum seekers and refugees, and social rights. While the report has been written by Sargentini, she has incorporated input from a wide range of experts and representatives of national and European institutions and has taken into account even modifications suggested by Orbán’s party. Moreover, the report also implemented the drafting of opinions by other Parliamentary Committees and consequently, guaranteed both a wider outreach among Members of Parliament as well as presented the shared responsibility in a more inclusive process.

When I sat down to write this blog I realized that I wrote a blog back in 2013, where I discussed how Hungary started walking off the road of constitutional democracy, the rule of law and the protection of fundamental rights. Back in 2013, three years into the second term of the Orbán government (1998-2002 was Fidesz’ first term), I was already discussing dramatic constitutional and legal developments in Hungary and together with many other commentators, I argued that the Hungarian developments illustrated the textbook case for a ‘a clear risk of a serious breach’ of the EU’s common values and could thus trigger the sanctioning mechanism of Article 7 TEU. The Hungarian case constituted already then a major challenge to the European Union’s evolution towards a constitutional and political entity and has clearly formed – together with the developments in Poland since 2015 – the EU’s first rule of law crisis. The main question I analyzed in the 2013 blog was: “what can and will the EU do? What legal and political actions can the EU take?” I was astonished to see that the text I wrote five years ago has lost none of its relevance.

In 2018 we are still posing the very same questions. What has changed, is the damage done to Hungarian society which has by now witnessed a systematic and largescale destruction of its fundamental rights, independent institutions and other constitutional safeguards of its democracy.

Throughout the past five years, numerous international organizations, including the Council of Europe and its Venice Commission, UN Human Rights Committee, and the OSCE, have expressed their concern about the situation in Hungary. Multiple reports have been written underlying and explaining these serious concerns. Various civil society organizations have fought to preserve what is left to be preserved of fundamental rights in Hungary for both Hungarians and non-Hungarians, most notably asylum seekers. Likewise, plentiful academic scholars have discussed and analyzed what and how the EU should do to discipline Hungary.

If you prefer statistical figures to the international reports analyzing Hungary’s regular attacks on the rule of law, then you may be more convinced by reading the Freedom House’s latest Nations in Transit ranking, where “Hungary has registered the largest cumulative decline in Nations in Transit history, after its score has fallen for 10 consecutive years” or Transparency International Corruption Perceptions Index 2017, where Hungary scored a 45 on a scale of zero to 100, three points below the previous year and 10 points down since 2012.

Also, concrete and recent examples illustrate the gravity of the situation. After last year’s Lex CEU and Lex NGO, which were both adopted by the Hungarian Parliament despite large-scale national and international criticism and protest, the newly elected Orbán government submitted the so-called “Stop Soros legislative package” as well as the 7th amendment of the Hungarian Fundamental Law to the Hungarian Parliament, which uncritically rubberstamped the laws. The “Stop Soros” bill restricts the ability of non-governmental organizations to act in asylum cases and criminalizes any individual or group that offers to help an illegal immigrant claim asylum.

The 7th amendment of the Fundamental Law, which was adopted in June this year, contained the restriction of the freedom of assembly, further restriction of judicial independence, the prohibition of homelessness with reference to the protection of the public use of public spaces and the protection of Christian culture. Besides Lex CEU, the government has decided to further restrict independent thinking and academic freedom by ensuring that the budget of the Hungarian Academy of Sciences for research is put under direct control of the Ministry of Innovation and Technology.

It is also worth counting the number of infringement procedures. Since 2010 there have been 20 infringement procedures against Hungary in the areas of justice, fundamental rights and citizenship.

Hence, what seemed to have just started in 2013, has by now grown into an open and flagrant destruction of a democratic society with its constitutional safeguards and independent institutions that it had so eagerly adopted in its post-communist democratization process after the transition in 1989. Viktor Orbán is driving the country towards what he declared an “illiberal democracy” in 2014 and what Bálint Magyar so aptly called the Post-communist Mafia state.

What is worse is the fact that in the last five years the rule of law has disappeared in Hungary, without any serious warning from the EU institutions that it was time to acknowledge that Article 7 TEU has been breached and the EU needs to act accordingly.

 

Why has the EU not acted before?

This question is perhaps the most pressing with regard to the Commission than the EP and the Council as in the latter two institutions the political situation, the EPP and Poland, have so far protected the ruling Hungarian party and the government. The Commission has been using two main justifications for its inaction. The first is that the concerns with regard to Hungary can be effectively addressed and dealt with through infringement procedures, and the second is that Hungarian national “rule of law safeguards” are still “capable of effectively addressing” any systemic threats to the rule of law.

However, as Kim Lane Scheppele has convincingly argued, infringement procedures are ineffective in addressing such systematic breaches and the CJEU often concentrates on specific technical questions in EU secondary law rather than on rule of law issues related to Article 2 TEU. Moreover, as mentioned above, the independence and impartiality of the Hungarian judiciary has been repeatedly undermined by seizing control over the appointment of judges and using political criteria regarding individual judge’s careers as well as the procedure through which cases are assigned to specific judges. Thus, the judiciary is unlikely to protect the rule of law guarantees.

A more legal-practical reason for the Commission’s inaction is the fact that the Hungarian situation, as it has developed in stages, has always been cautiously fabricated through legal rules. The rule of law has been destroyed by carefully prepared and constructed rules by the law, and as such the Commission may find it difficult to fight back.

Accordingly, the vote on 12 September has to be considered in the light of these facts.

 

Why is the vote on 12 September 2018 important?

The upcoming vote is crucial both for Hungary and the EU as it is the very first time that one of the EU Institutions may actually start disciplining and eventually sanctioning Hungary. The vote is important for at least three reasons.

First of all, it is a first critical step through which the MEPs can decide to set in motion a procedure that could eventually result in sanctioning the Hungarian government. If two-thirds of the MEPs vote in favour of the proposal, the case will move onto the agenda of the Council of the EU. The ministers of each EU country are represented in the Council and thus national governments will have to discuss the situation and eventually decide if they agree that there is a serious problem in Hungary. This procedure is based on Article 7 TEU, that contains a sanctioning and preventive mechanism for breaches of human rights and which was actually introduced as a result of the EU decision-makers’ concerns about the eastward enlargement of the EU.

The European common values have formed an essential condition (Copenhagen criteria) for becoming an EU Member as laid down now in Article 49 TEU. However, while prospective Member States are required to fully implement the Copenhagen criteria, there is today no mechanism in the Treaties to discipline Member States that systematically fail to respect the EU’s common values. The nuclear option of Article 7 TEU may result in suspending a Member State’s voting rights in the European Council, but has been argued to be more of a “a quarantine mechanism for the healthy states to avoid being influenced by the pariah state than it is a mechanism for restoring Member State compliance with EU values”. Furthermore, in practice it may prove to be an unworkable sanction because of the required supermajorities in the Council and Parliament. Still, if the EP Parliament will vote to start this legal process, the Council will have to consider the recommendation prepared by Sargentini and the process could lead to Hungary being stripped of voting rights.

Second, it is also an important vote because the question of whether to trigger an Article 7 procedure against Hungary’s government has throughout the past years developed into a critical debate on whether the EU itself can defend its own values. I already argued in 2013 that Hungary’s case is a crucial test for EU’s credibility and its commitment to democratic principles and fundamental rights. As explained above, the reactions from the EU on the Hungarian developments have been so far sadly weak.

As Kim Lane Scheppele and Laurent Pech have recently explained, the inaction of the EU and the Commission in particular can also be connected with the negative lesson learned in the case of Austria in 2000 when Member States launched bilateral sanctions after the far-right Freedom Party joined the Austrian coalition government. The political pressure placed on Austria proved to be unjustified as Austria did nothing that could validate the diplomatic sanctions and the EU Member States concluded that they had overreacted.

The negative experience in the Austrian case has made EU officials conceivably too conscious of the fact that the same mistake should not be repeated in the case of Hungary. However, in the case of Austria the EU acted too soon, even before the Austrian government had done anything objectionable. Moreover, the Member States acted outside of the Treaty framework instead of making use of the legally available Treaty provision for sanctioning a Member State by suspending its voting rights in the EU decision-making procedure. However, in the case of Hungary, it is no longer the risk of breaching EU values. There is an extensive body of evidence of the serious damage done to those values.

Nevertheless, even if Article 7 is a tough measure for the EU institutions to set in motion (due to the supermajority requirements in Parliament and the Council) and even though Article 7(1) is not much more than a warning , this warning vis-à-vis Hungary is crucial right now.

Third, the vote is important in the light of the upcoming EU elections in May 2019 and more specifically, the relationship between the EP’s largest party, i.e. the European Peoples Party (EPP), and Orbán’s Fidesz. For the EPP, the vote on 12 September is a choice between their dominant political position in the EP and defending the EU’s core democratic values. EPP members could be concerned that if they vote against Hungary, Orbán might be moving his MEPs to another political group, which would further weaken the EPP’s position. Orbán’s recent meeting with Mateo Salvini from Italy’s Northern League (which does not belong to the EPP group) has been interpreted as an indirect warning to the EPP if it does not continue to protect Orbán from accountability.

In particular, for Manfred Weber, the leader of the EPP in the European Parliament, the vote of 12 September can be a personal dilemma. He has just announced his candidature for the European Commission presidency on behalf of the centre-right party. At the same time, he is known for having protected Orbán, whose Fidesz party is a member of the EPP. Many commentators and politicians urge him now to take a clear position.

Until now the EPP always voted as a bloc against resolutions condemning the Hungarian government. However, the last time the EP took a vote on Hungary in 2017, this changed. In 2017, the EPP group was divided and its political leadership allowed their MEPs a free vote. 58% of MEPs in the European Parliament voted in favour of the resolution. On 12 September, the EPP MEPs who opposed or abstained in the 2017 vote will need to vote in favour of the Sargentini report for the resolution to pass.

In sum, the upcoming vote in the EP might have an uncertain outcome and even if the resolution is passed, the success of an Article 7 procedure is not guaranteed. Certainly, there might be other meaningful alternative mechanisms to discipline Hungary, for example, through preventing EU cohesion funds from subsidizing Member States that fail to follow basic European values and a more effective use of infringement procedures in case of systematic infringement of EU law by a Member State. Nonetheless, currently there is no other Treaty mechanism for controlling a Member state that persistently fails to respect the values of democracy, rule of law and human rights, and there is at the moment no other EU institution that is willing to activate Article 7 vis-á-vis Hungary.

Kati Cseres is associate professor of law at the University of Amsterdam.

 

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