On 12 September 2018, the European Parliament decided that the state of the Hungarian rule of law and democracy is at such a worrying level that the European Union has to take immediate action. In an unprecedented move, Parliament triggered the so-called Article 7 EU Treaty procedure. A procedure that can ultimately lead to significant sanctions such as Hungary losing its say when new EU laws are being made.The fact that a member State of the EU is put under scrutiny for not complying with the core values of the EU, and hence the conditions of its membership, is not a light matter to take. But how did it get to this point? What stage of the Article 7 procedure does the EU find itself in at the moment? And what does the future hold for the EU and its values?

From a liberated democracy to an EU member autocracy

Hungary joined the EU in 2004. When a country aspires to become an EU member state, it accepts the conditions of this membership: the Copenhagen criteria. Part of the conditions are the core values of the EU, which all Member States share. These core values are described in Article 2 of the EU Treaty as a renewed commitment:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

When Fidesz gained power in 2010 and obtained a two-thirds majority in the Hungarian parliament, it started rewriting the Constitution in fast pace. Alterations included shifting the regulating process of cultural, religious, moral, socio-economic and financial policies from simple majority, to cardinal laws, requiring a two-third majority. The Venice Commission criticised this, as it disregarded the constitution-making process.

Step-by-step, important cornerstones of a check-and-balances democracy have been chipped away

Step-by-step, important cornerstones of a check-and-balances democracy have been chipped away. Plurality of media, independence of the judiciary, fundamental rights of citizens: every building block of a rule of law-based society has been altered to diminish or even eliminate critical voice and critical thinking. Multiple methods are employed to concentrate power in the hands of Orbán and his allies, and to keep the public largely ignorant of the corruption that is taking place in the country. Changes through law or just proposing legislation bear its fruits. Methods such as having friends and family buy media outlets or assigning them convenient top positions, using negative rhetoric in public fora, scapegoating minorities in the country and creating a hostile environment for civil society all fit Orbán’ s blueprint for creating an illiberal democracy. In many instances, the mere suggestion of a law or policy creates a form of self-censorship and often has chilling effects: organisations and persons to be affected pre-emptively change their course of action or behaviour.

Protests in Budapest, urging the EU to take action. ©Flickr/Babak Fakhamzadeh

What has the EU done to intervene?

The European Commission (Commission) used a piecemeal approach: several infringement proceedings in different fields, from the independence of the judiciary to complying with asylum legislation, were pursued. However, the Commission was never bold enough to take the next step in the Article 7 procedure; it did not even to start the so called Rule of Law Framework - the pre-stage of an Article 7 procedure - which it did previously start in Poland.

The European Commission was never bold enough to take the next step in the Article 7 procedure

The Rule of Law Framework is a rather recent method of intensified dialogue between the Commission and a Member State, which aims to restore the rule of law in that Member State. Interestingly enough, the Rule of Law Framework came into existence when “the European Commission [was] confronted on several occasions with crisis events in some Member States, which revealed specific rule of law problems.” When the Hungarian government changed the Constitution in fast pace, and introduced the compulsory early retirement age of judges, prosecutors and notaries, the Commission took the country to the European Court of Justice (Court). The Court held that these changes in legislation were contrary to Union law.

Although Hungary subsequently changed the law, the damage was not reversed. The majority of the removed judges did not return to their original posts, partly because their previous positions had already been filled. The Hungarian government often uses this tactic, which clearly demonstrates why it is crucial to go beyond mere infringement proceedings if changes are not brought about and breaches of Union law keep persisting. At first glance, it looks like Hungary is complying with Court decisions, but in practice the desired outcomes for the ruling party are still achieved.

The Commission rightly pursues infringement proceedings when there are violations of Union law. However, when all developments in this specific case are viewed en masse, a systematic threat to the core values of the EU can clearly be noticed. This calls for tougher measures, but the Commission did not think fit. Furthermore, the predominant silence from European governments gave the Hungarian government plenty of space to further diminish Hungarian rule of law, democracy and fundamental rights. Fidesz is a member of the European People’s Party (EPP), which is the biggest political group in Parliament, and also in many member states’ national governments. It seems that decisions regarding taking action – or, for that matter, not taking action- have always been political in nature. Not that many politicians are prepared to hold a member of their own party accountable for violations of shared values. This changed in recent years: in 2017, the tipping point was reached.

The Sargentini report

For years, Parliament debated and adopted resolutions on the situation in Hungary. It called on Hungary, it appealed to the Commission, it urged other Member States to take a stand: alas, all without any resolute effect.

Only when the Hungarian government started to threaten civil society and academic institutions, the EPP drew its red lines. While the Commission opened up another set of infringement proceedings, Parliament – in May 2017- adopted the resolution that mandated the Parliament’s committee on Civil Liberties, Home Affairs and Justice to draw up a report asking for an Article 7 procedure. The resolution passed with a simple majority, because many EPP Members of Parliament abstained from voting, rather than voting against the procedure. The same was the case in previous resolutions on the situation in Hungary. These politicians were perceived as rebelling against their own party. Hence, they did not dare to vote in favour.

Member of European Parliament (MEP) Judith Sargentini was assigned the task of drafting this report. The report includes a long list of issues that -taken together- constitute a clear risk of a serious breach of the shared values of the EU by Hungary. In September 2018, Parliament adopted the report with the required two-thirds majority, and concluded that protection of EU values must immediately be guaranteed through the commencement of the Article 7 procedure.

The two-thirds majority was not self-evident. In the lead up to the vote, Commission President Juncker declared that he would vote in favour of the report if he was a MEP. Orbán did not give an inch to appease the EPP –such as disallowing the Central European University to continue teaching in Budapest- ; both in EPP meetings behind closed doors and in the plenary debate on the report. Furthermore, the evening before the vote Manfred Weber - MEP and chair of the EPP – declared that he would vote in favour of the report. This was contrary to his previous voting pattern, and deviated from his CSU colleagues’ votes. As Weber is running to become the next Commission President, and did not get the peace offer from Orbán that he was hoping for, he felt obliged to change his vote. The biggest shift in votes came from the EPP that would no longer cover for their member party that tore down the rule of law in Hungary in such an evident and systematic way.

Viktor Orbán at the European People's Party congress in 2015. ©Wikimedia

The ball is in the court of the Member States

In line with Article 7 of the EU Treaty, it is now up to the Member States, the Council of Ministers, to have a proper discussion on Hungary and come up with recommendations on how to improve the situation and to ensure that the values of the EU are upheld. To issue recommendations, 21 Member States have to agree and Parliament needs to give consent. At the outset, this seems highly infeasibly. Until now, little has happened in the Council.

While the rotating presidencies - Bulgaria, Austria and Romania - take their time in figuring out the process, the situation in Hungary is getting worse, simply because nobody is stopping Hungary - the Hungarian government knows that they can get away with a lot. In the summer of 2018, a friend of Orbán bought one of the last remaining independent Hungarian news channels, Hir TV, and it became another government broadcaster. Asylum seekers in the transit centres were denied food, but Hungary had to stop this starving campaign following orders of the European Court of Human Rights. Civil society organisations are imposed a hefty 25% tax when they carry out immigration-supporting activities. Sleeping rough has become a crime.

If we do not stand up for the rights of others, who will stand up for ours?

Over four hundred media outlets have been merged into a single holding, controlled by board members affiliated to Fidesz. This merger is exempted from the national competition authority and the national media authority. Most recently, in December 2018, the Hungarian Parliament adopted new laws that allow for much longer work overtime (hence often called the “slave law”) and the set-up of new administrative courts that have jurisdiction on politically sensitive matters like elections, corruption and the right to demonstrate. Following these latest governmental measures, Hungarians have been protesting for weeks now.

Recently leaked documents reveal the Hungarian government’s tactics to delay the process. Why is there such little sense of urgency in the Council? Member States often seem to find excuses not to have an adult conversation on this topic, as it is something that is making them feel uncomfortable. They hide behind the Commission for starting infringement proceedings and hope that the Court will solve the problem eventually. Parliament -in the meantime- had another debate in January on the developments after the adoption of the report in September. While Parliament does not have the tools to actually sanction a Member State for breaching the core values of the EU, it can keep on addressing the matter to ensure that change is brought about.

Time to take responsibility

It is the first time in EU history that notwithstanding all party politics, Parliament adopted the report with a two-thirds majority. It is a clear signal that Parliament cares about this matter, and does not want to stand by and watch how things worsen in one of the Member States. However, the passive attitude from Member States is worrying. We need to keep each other accountable, because if we fail to do so it is likely that other Member States will start to follow the Hungary’s blueprint, as can be noticed in Poland. Furthermore, if we do not stand up for the rights of others, who will stand up for ours? If ministers and governments choose to turn a blind eye to what is happening in Hungary, citizens should demand action. There is an opportunity to make our voices heard, to make sure we have representatives that cherish these values, respect the rule of law, represent all European citizens, and put pressure on the Member States to act. In the upcoming European Parliament elections in May 2019, this can be reached by voting for pro-European democratic parties that defend the core values of the EU.