The European Union addresses rule of law issues: Hungary is center stage

Interestingly, it was The Irish Times that first got wind of the news that Vivien Reding, European Commission Vice-President responsible for Justice, Fundamental Rights and Citizenship, will announce a new mechanism to make it easier for the EU to deal with countries whose governments repeatedly abuse its judicial and legal framework and thereby threaten the rule of law in member states of the European Union. It is no secret that one of these countries is Hungary; the other is Romania. In Hungary, the Orbán government threatened the independence of the courts in addition to limiting freedom of expression. In Romania, Victor Ponta wanted to abolish the Constitutional Court altogether.

We knew, at least since José Manuel Barroso’s “state of the union” speech last fall, that the Commission was working on some kind of mechanism that would close the gap between repeated infringement procedures and the invocation of Article 7 of the Treaty of the European Union. Article 7 states that in case of serious and persistent breach “the Council, acting by a qualified  majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.” This is the most powerful weapon the EU has in its arsenal, but it has never been invoked because it is considered to be far too harsh. Leaders of the “rogue states” know that they will never face the threat inherent in Article 7. Accordingly, EU officials have pointed out that they either have to break the taboo concerning Article 7 or have to come up with alternative measures. Vivien Reding in the presence of President Barroso and Cecilia Malmström, Commissioner of Home Affairs, announced such an “alternative measure,” a mechanism that would close the gap between the lengthy and most of the time ineffectual infringement proceedings and the draconian but never used Article 7.

At first glance, the measures outlined by Vivien Reding seemed toothless to me. I was especially disappointed when I read about the “dialogue” the Commission will conduct with the government of any rogue member state. I recalled the endless dialogues between Brussels and Viktor Orbán that led nowhere while the Hungarian prime minister danced his peacock dance. But then I discovered a sentence that might give us hope. Reding said that “the Commission, as guardian of the EU treaties, also had to become the guardian of the rule of law in the Union.” They envisage an extension of the Commission’s competence.

The Commission will not deal with individual cases or miscarriages of justice, only with “systemic threats” to EU values. That is, a distinction will be drawn between individual infringements that don’t threaten the fundamental democratic structure of the state and grave, all-embracing changes that affect the entire body politic. As we know, in the last four years the Hungarian government fundamentally changed the whole “system.” In fact, Orbán only a few weeks ago admitted that the system that exists now is fundamentally different from what Hungary had prior to 2010. Indeed. Then Hungary was a democracy. Today it is not.

The photo Napi Gazdaság used for its article on the  Brussels's move against rogue states

The photo napi.hu used for its article on Brussels’ move against rogue states

How does the European Commission propose to deal with systemic threats to democracy? As a first step, it will collect evidence of “a systemic threat to the rule of law.” If such an assessment is made, “it will initiate a dialogue” by sending a “rule of law opinion” to the government in question. At that point the member state will have an opportunity to respond. In the second stage, “unless the matter has already been resolved, the Commission issues a ‘rule of law recommendation’ to the country concerned.” At this point the country will be given a fixed length of time in which to remedy the situation. These recommendations, unlike the “rule of law opinions,” will be made public. If the issue is not satisfactorily resolved, “the Commission can resort to one of the mechanisms set out in Article 7 of the EU treaty.” Whether this new three-tiered system ends up being as ineffectual as the former procedure remains to be seen.

The Hungarian media is in no hurry to report on this particular bit of news. Only two Internet sites published something on Vivien Reding’s announcement: Index and napi.hu. Both point out that the announcement is the consequence of the European Union’s endless and mostly fruitless struggles with Viktor Orbán’s systemic attack on the rule of law. Index specifically mentions Rui Tavares’s suggestion that the EU establish a new supervisory Copenhagen mechanism assessing member states’ compliance with the rule of law, fundamental rights and democracy. As you can see, the Copenhagen suggestion was not included in the proposal. Instead, the Commission itself assumed the role. Whether this is a better solution or not, I cannot determine.

In any case, the European Union made the first move. Of course, it will be many months before the new mechanism is in place, but I think that this time the Commission means business. Reding even announced “the need for an EU Minister for Justice taking the helm at a central level, giving EU justice policy a face and, of course, held accountable to the European parliament.”

Unfortunately, the European Union as it functions today is not a viable entity. Just as the Articles of Confederation turned out to be unworkable and had to be replaced by the Constitution of the United States of America. The European Union should realize that without a stronger framework, it will remain a toothless giant bogged down in intra-state struggles and endless bureaucratic wranglings.

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55 comments

  1. bbb :

    qaz :

    cicvarek2 :(…) according to all recent cultural research/polls, Hungarians seem much closer culturally to Azerbaijanians, Bosnians, Georgians than to Slovaks, let alone to the Baltic people. Orban is catering to this majority.Get used to it.

    Sources of the cultural research/polls?

    http://www.tarki.hu/hu/research/gazdkult/gazdkult_wvs_keller.pdfI am certain that there are other, more recent ones made by others, but this is one I could quickly find.

    Neither Azerbaijan, Bosnia nor Georgia are mentioned in the Tarki study, in which the country closest to Hungary seems to be Bulgaria. Now, transforming Hungary into Bulgaria would certainly be an achievement… 🙂

  2. Ivan :
    However toothless the EU might be (and however frustrating it might be to witness how easily they are often duped by smooth Fidesz spin), at the end of the day this pales next to the towering EU achievement of, well, NO WAR between member states, in a continent that pretty much couldn’t stop fighting in previous decades and centuries, and continues to fight right outside the EU borders. Silly to dismiss this. That and a (slight) reduction in Hungarian bureaucracy for the dreaded ‘outsiders’ are things to celebrate!

    Would you be kind to point out when and who dismissed the achievements of the EU? Also, I am not sure what are you referring to “no war between members states”. Can you tell us when was the last time any of the members states were in war between each other prior to EU membership and when did they become members of the EU?
    You can look back on plenty of examples when the readers of the is blog brought up how the EU helped Hungary. THere were links posted to photographs taken on constructions and rehabilitations financed by the EU. The “Peace March” members (anti EU demonstrators really) were constantly ridiculed, and Orban scrutinized for his “pava dance” with the EU. Not only that but Eva helped us to follow closely the “standoff” on the basic law, media freedom, etc. between the EU and Hungary. So to make a general post making it sound like that many of us are against the EU is very unfair.

    When it comes to criticism,why not? This blog is not like a Fidesz PR mechanism where people will blindly overlook the shortcomings of any preferred organization or institution just to support for the sake of supporting. The EU is not good “as is” and the criticism was an answer to the new efforts of the EU to make members states to comply with some basic principals of the membership. Unfortunately most of us feel that whatever the EU is doing and suggests to do is not going far enough. It is a slow an cumbersome process that will have no effect on “pava dancers” like Orban. If the EU would be able to control the Hungarian situation they would of done it long time ago, and this blog would of became almost irrelevant. If you think that what Eva described above will have any effect on how things done in Hungary right now, please let us know. If you think that it will have any relevance for the next year, I would love to know how. THe truth is that the EU has an arsenal of laws, and processes but in reality they never gone much further then waving their fingers at Orban. AT the end he did his “pava dance”, as he said he will, and things stayed status quo.

  3. Some1 :

    qaz :
    @Some1
    I made reference to liberal democracy as the political system required as a condition for a country to belong to the EU. While checks and balances in Hungary have been tampered with, she is still considered a liberal democracy and expected to behave as such, the reality on the ground notwithstanding.

    Essentially, “Rose is a rose is a rose is a rose”. I did understand what you were saying. My point is that Hungary only on paper fits the criteria, and there is nothing that the EU will or could do to change that, except pushing papers back and forth, having countless meetings, and so forth. What was Hungary ten years ago has no relevance, just like what Hungary was 30 years ago has no relevance either. Things are what they are. In reality at this point in time the EU in cases like this is nothing more than an additional layer of bureaucracy that will solve nothing but cost a lot.

    We are definitely on the same wavelength

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