First Posted 8 July 2013 by Policy Network
By Erin Marie Saltman and Lise Herman
What does the European Union do about a member state that has recently been referred to as the ‘cancer in the middle of Europe’?
Hungary has come under increasing scrutiny from European Union bodies and international watchdogs since the 2010 national elections, when the Fidesz government won a two-thirds majority in parliament. Since then the right-wing government has installed large overhauls of the country’s foundational institutions, including a new constitution, fundamentally changing the functioning of the media, the judiciary, the Central Bank and the education system. Many of the government’s changes have mirrored propositions first put forth by Hungary’s radical right party, Jobbik.
These changes have been criticized by the European Union and international actors for reinstating undemocratic and authoritarian elements into Hungary’s governing foundations. While the Fidesz government has re-tailored some of their new legislation to appease international critics, they remain largely defensive of the new direction Hungary is taking. As a consequence, European institutions are having to confront the real challenge of defining their supranational power over members.
The Fidesz Government’s Opinion
While the international community has put forth its list of grievances with Hungary’s current direction, Fidesz remains the most popular political party in Hungary with a consistently strong lead over opposition parties. The governing party maintains that the new constitution and institutional changes are in line with the will of millions of Hungarians who elected their party into power. It further insists that the constitutional court has retained all its original functions (apart from one area of economic policy), that the National Bank remains independent, that their media law has produced none of the outcomes predicted by onlookers, and that the constitution is well within European practice.
The government insists that they have a democratic mandate to develop Hungary’s legislation and that international interference, mainly by foreign media, has taken an opportunity to undermine national progress. Fidesz has also qualified strong EU reports and potential sanctions as ‘an attempt to constitutionally colonise Hungary’. For many Hungarians, who recall years of national oppression under Hapsburg, Nazi and Communist control, personifying the EU as a potential continuation of this oppression is credible. As understood by Fidesz MEP József Szájer, vice chairman of the European People’s Party Parliamentary Group, Hungarians want to control their destiny and rectify the mistakes from their past. In this vision, the new Constitution is the essential symbol of moving forward, embracing Hungary’s Christian roots and national values. Prime Minister Viktor Orbán has said that a fifth constitutional amendment is unnecessary and that the European Union is abusing its power but that Hungary will most likely instate a further amendment as a concession to the EU.
A large focus of the European Union in recent years has been on economic restructuring and bringing the Eurozone out of the financial crisis. Elsewhere, however, worrying illiberal shifts, from the Netherland’s top polling PVV Party to increasing support for France’s Front Nationaland now post-communist Hungary, demand attention. Currently both the European Parliament’s Civil Liberties Committee (LIBE) and the Parliamentary Assembly of the Council of Europe have voted on the potential monitoring and sanctioning of Hungary. No country has ever been ‘kicked out’ of the EU and besides a controversy following the 1999 Austrian federal elections, the EU has never had to sanction a member state over questions of democratic principles.
So what can the EU do?
The legal difficulties EU institutions are finding with Hungary’s path are partially explained by the EU’s 1993 Copenhagen Criteria monitoring potential Member States in their respect for democratic institutions and human rights before accession. Paradoxically, the tools that would allow continued respect for these norms beyond achieving membership are rather scarce. Crucially, human rights laws and democratic principles such as those enshrined in a constitution are the exclusive competence of Member States and their national authority. To get around this the Commission has adopted infringement procedures against legal provisions it has authority over. Infringement procedures have already begun against Hungary concerning the independence of the Central Bank, various tax laws and judiciary independence.
A second course of action, currently being decided on, is the recourse to Article 7 of the Treaty on the European Union (TEU). The article gives the European Commission the permission to ask the European Council to determine whether a Member State still complies with respect for the human rights and democratic principles the Union is founded on, laid out in Article 2 of the Treaty. If the Council unanimously declares the existence of a serious and persistent breach of these principles the Council can suspend a Member States’ voting rights. Learning from the 1999 Austrian crisis, the Nice Treaty added a preventive measure to Article 7, addressing cases where there is a “clear risk of a serious breach by a Member State of the values referred to in Article 2”, leaving the door open for the ‘nuclear option’ of voting suspension if this warning remains unheeded.
The main problem with Article 7 is not that it is too drastic and not gradual enough a solution, but that it constitutes a highly sensitive political decision to infringe on a Member State’s national decision making. In a meeting last week The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament voted that a monitoring of Hungary’s democratic values and compliance with human rights would be needed, asking for constant reports from the Hungarian government. In their assessment of Hungary’s new constitution the committee stated that they ‘regret the fact that the process of drafting and adopting the Fundamental Law of Hungary lacked the transparency, openness, inclusiveness and, ultimately, the consensual basis that could be expected in a modern democratic constituent process, thus weakening the legitimacy of the Fundamental Law itself’.
Potential Outcomes and Future Questions
In April 2013 the Venice Commission, an independent advisory body to the Council of Europe, and The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament recommended that Hungary be subject to monitoring. If this goes ahead Hungary will be the first EU country to undergo monitoring and a Monitoring Committee will be appointed to verify Hungary’s compliance with the terms of the Statute of the Council of Europe and the European Convention on Human Rights. However, the only threat the Council of Europe holds to enforce compliance is the suspension or expulsion of Hungary from the Council. Comparing the relative importance and authority of the Council and the EU, the threat represented by a suspension from EU voting rights remains far greater than the threat of expulsion from the Council of Europe. The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament is currently discussing a report on the Hungarian situation, to be presented in plenary sessions this month. Crucially, point 51 of the report threatens Hungary with the use of Article 7 if European Commission recommendations are not instated. That being said, the European People’s Party, of which Hungarian Prime Minister Viktor Orbàn is still vice-president, remains supportive of the Hungarian Government, making the success of such an enterprise unlikely.
The current standoff between national and supranational authority is a difficult situation to resolve. To what extent European institutions can and should intervene with national government policies remains largely a gray zone for dispute. The Hungarian case is sure to set a benchmark, regardless of the outcome, for other European countries.
Erin Marie Saltman is a post-graduate researcher at the UCL School of Slavonic and East European Studies
Lise Herman is a post-graduate researcher at the LSE European Institute