Venice Commission

The Hungarian government under domestic and foreign pressure

As I’m writing this post thousands are again demonstrating against the government. The crowd gathered in front of the parliament, which one of the organizers called “the puppet show,” and then is heading toward the Castle District, where Viktor Orbán is planning to move. The move will cost an incredible amount of money but, as one of the undersecretaries in the prime minister’s office said, the citizens of Hungary will be really happy once the prime minister moves to quarters befitting his position. Given the mood of these crowds, I very much doubt that that will be the case. The good citizens of Hungary who are out on the street actually wish Orbán not to the Castle District but straight to hell.

The demonstration was organized against corruption but, as usually happens at these mass demonstrations, the crowd went beyond the limited goal of the organizers and demanded the resignation of Viktor Orbán and his government. Fidesz politicians, it seems, have been caught flat-footed. They surely believed that these demonstrations would peter out. Winter is approaching and Christmas will soon be upon us. It was hoped that people would be busy shopping and preparing for family gatherings. But this time they were wrong. Suddenly something inexplicable happened: the totally lethargic Hungarian public was awakened. What happened? After all, the misuse of power and the network of corruption have been features of the Orbán regime ever since 2010 and yet the public was not aroused against its unrelenting abuse of power. Most people knew that Fidesz politicians are corrupt and that they stuff their pockets with money stolen from the public, but they felt powerless to do anything about it.

I see a number of reasons for this change in the Hungarian political atmosphere. I would start with the influence of the book Hungarian Octopus: The Post-Communist Mafia State, edited by Bálint Magyar, in which dozens of political scientists, economists, sociologists, and media experts published articles that presented for the first time a comprehensive picture of the institutionalized corruption which is the hallmark of the Fidesz regime. Fairly quickly the terms “mafia state” and “mafia government” became part of everyday vocabulary, and the government’s dealings came to be understood within the context of The Godfather. The sinister nature of the enterprise was slowly grasped.

A second reason for the optimism and activism was the success of the first two mass demonstrations against the “internet tax.” Viktor Orbán had to retreat. If he retreated once, more demonstrations might force him to reverse earlier decisions. The success of the first demonstrations gave impetus to the others.

Last but not least was the Hungarian government’s own stupidity when it decided to leak the news about American dissatisfaction with the National Tax Authority and the corrupt officials who tried extract kickbacks from at least one American company. Hungarians expected their politicians to be corrupt, but the news that high officials at the Hungarian Tax Authority were also on the take was too much for them. Moreover, they felt that they now have an ally, the United States of America.

According to most observers, U.S.-Hungarian relations are at their lowest point since the post-1956 period. U.S. policy toward Hungary seems to me at least to be finely calibrated. At the beginning we were told about the six unnamed people who were barred from entering the United States. A few days later we learned that the president of the Tax Authority was definitely on the list. A few more days and we were told that the president is not the only person on the list, there are a couple more. Another week went by and André Goodfriend, U.S. chargé d’affaires, indicated that there might be more Hungarians who would face the same fate as the six already on the list. Another few days and we learned from the American chargé that he had given the Hungarian government all the information necessary for investigating the cases. And it was not the “useless scrap of paper” Viktor Orbán pointed to. In plain language, we found out once again that the Hungarian government lies. And yesterday we learned from an interview with Goodfriend that the sin of Tax Office Chief Ildikó Vida goes beyond not investigating obvious corruption cases within her office; she herself was an active participant in the corruption scheme at her office. Of course, Vida is outraged, but she cannot do more than write an open letter to Goodfriend claiming innocence. As time goes by the Hungarian government is increasingly embroiled in a web of lies and Orbán’s regime comes to resemble ever more closely the government of a third-rate banana republic.

The good old days: George W. Bush in Budapest, June 22, 2006

The good old days: George W. Bush in Budapest, June 22, 2006

While the State Department is using the corruption cases as a club, Senator John McCain is pursuing his own individual crusade. The senator, who is no friend of Putin, has been keeping an eye on Viktor Orbán’s illiberal state and found it to be troubling. What we saw two days ago was his frustration that Hungary will again have a political appointee as an ambassador. As he emphasized over and over, Hungary is a very important country that deserves a professional diplomat. His outburst about Orbán as a “neo-fascist dictator” was a bit strong, although Orbán’s system does have features in common with some of the fascist regimes of the past. But the Hungarian charge that McCain is ignorant of the Hungarian political situation is entirely baseless. Once he calmed down, he put it into writing what he finds objectionable about Orbán’s illiberal state. At the time of the release of his statement on Hungary he wrote a brief tweet saying, “Deeply concerned by PM Orban eroding democracy, rule of law, civil society & free press in Hungary.”

Below I republish Senator McCain’s statement on Hungary because I find it important and because it proves that, regardless of what the Hungarian government says, McCain (undoubtedly with the help of his staff) knows what he is talking about.

Since Prime Minister Viktor Orban came to power in 2010, antidemocratic constitutional changes have been enacted, the independence of Hungary’s courts have been restricted, nongovernmental organizations raided and civil society prosecuted, the freedom of the press curtailed, and much more. These actions threaten the principles of institutional independence and checks and balances that are the hallmark of democratic governance and have left me deeply concerned about the erosion of democratic norms in Hungary.

These concerns are shared by many. A ruling by the Venice Commission in 2013 found that Prime Minister Orban’s constitutional changes threaten democracy and rule of law in Hungary, stating that the amendments ‘contradict principles of the Fundamental Law and European standards,’ and ‘leads to a risk that it may negatively affect all three pillars of the Council of Europe: the separation of powers as an essential tenet of democracy, the protection of human rights and the rule of law.’

The Organization for Security and Cooperation in Europe (OSCE) and the Committee to Protect Journalists have condemned Hungary’s media laws, saying that they create a climate of fear and media self-censorship, even after critical changes were made to account for previous complaints from the European Commission. ‘The changes to the Hungarian media law only add to the existing concerns over the curbing of critical or differing views in the country,’ said Dunja Mijatovic, OSCE’s representative on Freedom of the Media.

The European Central Bank has repeatedly warned that Prime Minister Orban’s government is encroaching on the independence of its central bank, calling for him to respect the independence of monetary policymakers and condemning attempts by the government to threaten central bankers with dismissal if they oppose government policy.

And just last month, six Hungarians were banned from entering the United States over alleged corruption. U.S. Chargé d’Affaires André Goodfriend reportedly called the ban a warning to reverse policies that threaten democratic values, citing ‘negative disappointing trends’ in Hungary and a ‘weakening of rule of law, attacks on civil society, [and] a lack of transparency.’

Democracy without respect for rule of law, separation of powers, and the protection of economic, civil, and religious liberties is not only inadequate, it is dangerous. It brings with it the erosion of liberty, the abuse of power, ethnic divisions, and economic restrictions – all of which we have witnessed in Hungary since Prime Minister Orban took power. Prime Minister Orban has justified his actions by calling for a new state model based on ‘illiberal democracy,’ but his vision defies the core values of the European Union and NATO. These alliances are founded not only on the principle of democracy, but also rule of law and the protection of individual liberty and fundamental freedoms. All members must remain committed to these values.

Meanwhile both Hungarian and foreign newspapers are full of stories about the demonstrations and about McCain’s characterization of Orbán as a “neo-fascist dictator.” As the Hungarian prime minister continues to come under attack, both from within and from without, it’s unclear how he will fight back and how effective his counterattack will be. If the proposed Sunday store closings are any indication of the government’s new game plan, the counterattack will be a colossal failure.

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The state of the churches in Viktor Orbán’s Hungary: An exchange of views

Today I’m republishing an exchange of letters between György Hölvényi, a Christian Democrat who is a member of the Fidesz European Parliamentary delegation, and H. David Baer, associate professor at the Texas Lutheran University. The reason for the exchange was an article that appeared in The Economist entitled “A slippery Magyar slope.” The article was about the “ill-named law on ‘the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.’” Hölvényi, who before becoming a MEP was deputy undersecretary in charge of the government’s relations with churches, national minorities and civil society, came to the defense of the much criticized law. Since the article in The Economist was republished by Human Rights Without Frontiers (HRWF), Hölvényi sent his reply to that organization, which subsequently included it in its newsletter. Baer, an expert on Hungarian religious affairs, decided to respond. His reply was also published in HRWF’s newsletter. I thought that this exchange of letters, which shines a light on the Orbán regime’s attitude toward religious freedom, was worth republishing.

First a few words about György Hölvényi. He comes from a devout Catholic family. His father was a Cistercian priest who eventually left the order and married. The young Hölvényi became involved with the Christian Democratic movement and in 1989 was one of the founders of the Christian Democratic Union. He spent many years in Brussels serving the parliamentary delegation of the European People’s Party in various capacities. As a result, his name was practically unknown in Hungary. That changed in May 2012 when he was named assistant undersecretary in Zoltán Balog’s Ministry of Human Resources.

Prior to that date the post was occupied by László Szászfalvi, who was a Hungarian Reformed minister just like Balog himself. Apparently the Catholics in the Christian Democratic Party raised a stink: two Protestant ministers were at least one too many. A Catholic must be found. Szászfalvi had to depart and came Hölvényi.

In the most recent elections for the EU parliament Hölvényi was number 12 on the Fidesz list. The party had to do very well for Hölvényi to get to Brussels. One reason for his low rank on the list was that certain positions were reserved for ethnic Hungarians from Ukraine, Romania, and Serbia. But the size of the Fidesz victory was such that he made it, and now he is a member of the new European Parliament.

The article in The Economist pointed out that “getting recognition as an ‘incorporated church’ required a two-thirds majority in Parliament. So what should be a simple administrative decision was turned into a political one, in which legislators have to assess the merits of a religion…. As a result of the law, at least 200 religious communities, including Methodists, Pentecostalists, Seventh Day Adventists, Reform Jews, Buddhists and Hindus faced a downgrading of their status…. In February 2013, Hungary’s Constitutional Court ruled that 67 groups had been deregistered unconstitutionally. However the government seems to have ignored the ruling. A government ministry rejected the written requests of at least four deregistered bodies to be added to the list of incorporated churches.”

Gábor Iványi, one of the victim's of the Orbán regime's church law

Gábor Iványi, one of the victims of the Orbán regime’s church law

With this introduction here is the exchange of letters. First, György Hölvényi’s letter written immediately after the appearance of the article in The Economist. David Baer’s letter was published only a few days ago in the HRWF newsletter.

 * * *

Response to the Erasmus blog post “A slippery Magyar slope,” September 25th 2014

The recent post of The Economist’s blog Erasmus on religious freedom in Central Europe (“A slippery Magyar slope”” by B. C., September 25th 2014) makes several misleading statements and offers a rather personal interpretation of the existing legal regulations on churches in Hungary.

Basic aspects on the registration process of churches have not been detailed in your blog post. Firstly, all associations dealing with religious activities are registered solely by the courts in Hungary. A politically highly neutral system. These communities operate independetly from the state, acoording to their own principles of faith and rituals.

The blog post makes references on “incorporated churches” in Hungary. It is crucial to know that the category of “incorporated churches,” as you call it, does not affect religious freedom at all. It is simply about financial aspects such as state subsidies for churches running social activities for the common good of the society.

It must be pointed out that many European countries apply legal distinctions between different religious organisations for various reasons. Quite often it is the Parliament who is entitled to grant them a special status (e.g. in Lithuania, Belgium). Besides, there are a number of European countries where the constitution itself places an established religion above the rest of the religious communities (e. g. in Denmark, Finland, Greece, Malta). For the record, it needs to be mentioned that the Parliament is involved in special recognition processes of the churches at different later stages also in Austria, Denmark, Portugal or Spain. In general, the European Union leaves the rules on the foundation of churches in the Member States’ competence.

As the post correctly recalls, the original Hungarian regulation on churches of 1990 was probably the most permissive in Europe. Uniquely in the world, more than 300 registered churches operated in Hungary for decades, enjoying the widest range of financial entitlements provided by the state, with no respect to their real social activities. The amended Church Act provides for a complete freedom of conscience and religion in Hungary, at the same time it eliminates errors of the uniquely permissive regulation.

When looking at international commentaries of the issue let us focus on the facts again. The relevant opinion of Venice Commission on the issue of religious freedom in Hungary stated that the Hungarian regulation in place “constitutes a liberal and generous framework for the freedom of religion.” The resolution of the Constitutional Court in Hungary referred to in your blog post did not make any reference to the freedom of religion in Hungary. On the contrary, the government’s intention with the new legislation was widely acknowledged by the Court. The US State Department’s report on religious freedem of 2013 does underline that the Fundamental Law and all legislation in Hungary defends religious freedom. Facts that have been disregarded by the author of your post.

Last but not least, the alliances of the non-incorporated churches in Hungary recognised and declared in a joint statement with the responsible Hungarian minister that they enjoy religious freedom in Hungary.

In contrast to the statements of your article, incorporated churches in Hungary include the Methodists: the United Methodist Church in Hungary is a widely recognised and active community in Hungary, as well as internationally. The fact is that Mr Iványi’s group has not been included in the UMC itself and is not recognised at all by the international Methodist bodies. Describing it as a “highly respected” church is again a serious factual mistake, reflecting a lack of information on the issue.

Coming finally to the issue of the European Court on Human Rights’ decision: some of the member judges formed special opinions to the appeal of the affected churches. Although the Hungarian government is challenging the decision, at the same time it started negotiations with the appealing communities on the remedy process.

In conclusion, I would highly recommend that your blogger B.C. pay wider attention to the facts to better understand regulations on church affairs that have been in place in Europe for decades and centuries.

HÖLVÉNYI György
Member of the European Parliament for Hungary / EPP Group

 * * *

H. David Baer’s reply:

Mr. Hölvényi writes to defend a church law that the ECtHR has found to breach the European Convention and which the Hungarian government refuses to amend.  He would thus have us believe that religious communities in Hungary enjoy religious freedom even as they are not protected by the rule of law.

Mr. Hölvényi urges that we stick to the facts. The fact is that in 2011 the government of Hungary retroactively “deregistered” religious communities already recognized as churches under Hungarian law.  The fact is that in 2013 Hungary’s Constitutional Court found this deregistration procedure unconstitutional.  The fact is that after 2013 the government of Hungary blatantly ignored the Court’s decision, refusing to treat unconstitutionally deregistered religious communities as legal churches.  The fact is that in 2014 the European Court of Human Rights found that Hungary’s unconstitutional church law also violated the right of religious freedom and the European Convention.  The fact is that the Hungarian government has still not, as of this day, acted to abide by the European Court’s decision.

Mr. Hölvényi knows these facts, because prior to being an MP in the European Parliament he was the state undersecretary responsible for dealing with the churches in Viktor Orbán’s government.  As undersecretary, Hölvényi worked closely with Zoltán Balog, Minister of Human Capacities, to obstruct implementation of the Constitutional Court’s decision so as to deny deregistered religious communities their constitutional rights. Just this past month, Péter Paczolay, the president of Hungary’s Constitutional Court, lamented openly in a public address that the Court’s decision on Hungary’s church law had never been respected or implemented.  Mr. Hölvényi bears direct responsibility for this.  Thus, to listen to him aver that Hungary’s deregistered churches enjoy religious freedom is a little like listening to a man caught stealing his neighbor’s shirt and pants aver that his neighbor has the freedom to wear underwear.

Religious communities in Hungary enjoy religious freedom the way NGO’s in Hungary enjoy freedom of association. Denied equality under the law and subject to opaque regulations, deregistered religious communities, like unpopular NGO’s, are subjected to arbitrary and expensive audits, hindered or prevented from raising money, attacked in the government controlled media, and harassed by local officials.  Mr. Hölvényi, a member of the European Parliament, should know that when citizens aren’t equal under the law they aren’t equally free.

Instead of defending Hungary’s indefensible church law, perhaps Mr. Hölvényi should encourage the government of his country to respect the rule of law, uphold its international commitments, and abide by the European Convention.

David Baer
Texas Lutheran University
USA

New details on the Russian-Hungarian agreement on Paks; Kim Scheppele’s “Hungary, An Election in Question, Part 2″

I’m returning briefly to the secretive Putin-Orbán agreement on the addition to the atomic power plant in Paks. Shortly after the news of the agreement became public, I heard rumors to the effect that what the Orbán government actually wanted was not so much a new power plant built by Rosatom but an outright loan of 5 billion dollars. The Hungarian media spent a few lines on this rumor, but the topic was dropped soon enough. Most likely the rumor couldn’t be substantiated. But now Népszabadság has returned to the topic. In a fairly lengthy article the reporter who has lately become a kind of Paks expert unearthed a number of new strands in the story.

The information comes from “an expert who is an adviser to the government with knowledge of the details” who asserted that the original rumor about the loan the Orbán government wanted so badly was in fact true. The government wanted a loan that it could use as it best saw fit. The Russian partner, however, wanted to link the loan to the extension of the Paks power plant. Although negotiations went on for about a year, the two sides couldn’t come to a satisfactory agreement. At this point István Kocsis, former head of Paks and later of MVM (Magyar Villamos Művek/Hungarian Electricity Ltd), was asked by the government to use his good offices with the head of Rosatom. It didn’t seem to bother Orbán that Kocsis had been charged with embezzling billions, a case that is still pending.

Apparently Kocsis achieved miracles and in no time Rosatom had a contract ready to be signed. Népszabadság‘s informant claims that the Hungarians couldn’t change a word in the terms of the contract. There is, in fact, the suspicion that the reason the Hungarian text is so awkward is that most likely it was a translation from Russian. Earlier difficulties arose as the result of Hungarian insistence that the loan be extended to Hungary even if for one reason or another the power plant couldn’t be built or the project were protracted. At the beginning Rosatom insisted that the money would be lent to Hungary only as the work progressed. We still don’t know exactly what is in the agreement but, as Népszabadság‘s informer said, we may find out that “in the final analysis the Orbán government didn’t bring two reactors but ‘a new IMF loan’ from Moscow.”

The way the Orbán government spends money every penny will be needed. As it is, the national debt is higher than ever. It is over 80% even with the large infusion of money the government laid its hands on from the private pension funds. If we discount this “stolen money,” the national debt would be over 90% of the GDP. The government so far has spent more than 600 billion forints buying up private utility companies and is embarking on very ambitious plans to create a so-called “museum quarters” in Pest, which will accommodate the museums and Hungary’s National Library that are currently housed in the Royal Castle. This project is necessary because Orbán wants to move the entire government to the Castle District. The president’s office would move from the Sándor Palace to the Royal Castle and Viktor Orbán would presumably move into the Sándor Palace.

Yesterday another interesting tidbit about the Putin-Orbán agreement saw the light of day. An LMP member of parliament, Bernadett Szél, initially demanded access to the document but her request was refused. LMP will sue the government on that issue. She was, however, granted a half-hour interview with Mrs. László Németh, who admitted to her that the Orbán-Putin agreement was signed before the Hungarian government had a chance to authorize the deal. Lately, it seems, Fidesz politicians often slip and tell the truth by mistake. Like Lajos Kósa about the tape of Ferenc Gyurcsány’s speech at Őszöd. The next day he had to “correct himself.” That was the case with Mrs. Németh as well. Her ministry immediately corrected her. The ministry’s spokesman claimed that it is clear from the January 31 issue of the Official Gazette (Magyar Közlöny) that the authorization was dated January 13 and it was on January 14 that the agreement was signed. My only question is: why did they publish the text of the authorization only on January 31?

Finally, let’s not forget about the Holocaust Memorial Year. András Heisler, president of Mazsihisz, decided to step down from the advisory board of the House of Fortunes. Since Mazsihisz (Federation of Hungarian Jewish Communities) opposes the establishment of this new museum, Heisler saw no reason to remain a member of the board. Moreover, as he said, the board is totally inactive. Mária Schmidt, who is the government-appointed director of the project, called the board together only once.

* * *

Hungary: An Election in Question

Part II: Writing the Rules to Win – The Basic Structure

Professor Kim Scheppele, Princeton University

How did the governing party Fidesz stack the deck so much in its favor that the upcoming Hungarian election’s results are not in doubt?

Fidesz started immediately after its election victory in 2010 to reshape the electoral system to ensure its hold on power. The Fidesz parliamentary bloc, which enacted constitutional changes without including or consulting any opposition party, slashed the size of the parliament in half, redrew all of the individual constituencies unilaterally, changed the two-round system to a single first-past-the-post election for individual constituencies, and altered the way votes were aggregated.

Moreover, Fidesz has granted dual citizenship and therefore voting rights to ethnic Hungarians outside the borders who are overwhelmingly Fidesz supporters, while at the same time maintaining a system that makes it comparatively harder for Hungarian citizens living or working abroad to vote.

The media landscape and campaign finance rules overwhelmingly benefit Fidesz and a series of last-minute changes to the law just before the campaign started put the newly united center-left opposition at an even greater disadvantage. In addition, the governing party has captured the election machinery which is now staffed with its own loyalists.

The sum total of all of these changes makes it virtually inevitable that Fidesz will win.

The devil is in the details, so let’s walk step by step through these various ways that the governing party has changed the rules in its favor.

As one of its first acts in office, on 25 May 2010, the Fidesz parliament amended the constitution it inherited to cut the parliament’s size in half. This was a move lauded by all sides of the political spectrum, as the old 386-member parliament was widely perceived as too large to be effective and too expensive for a small country in debt. The new 199-member parliament that will be seated after the 2014 elections will represent new electoral districts that had to be newly drawn to accommodate this new, smaller parliament. Redrawing the districts was not only widely welcomed, but also required by the Constitutional Court, which had ruled (first in 2005 and again in 2010) that the old districts had become too unequal in population size to give all citizens an equal vote.

The old districting system already favored Fidesz because the larger districts were in the urban strongholds of the left and the smaller districts were in the rural districts of the right. As a result, rural conservative votes were given more weight because it took fewer of their votes to elect an MP. But the way that Fidesz redrew the districts for 2014 gave their party an even greater advantage than they had before.

Without any consultation with opposition parties, Fidesz enacted a new “cardinal law” in 2011 that simply set the boundaries of the districts (Law CCIII/2011). While most election laws provide principles for drawing districts and assign some neutral or at least multi-party body to actually draw the boundaries, the borders of the districts in Hungary are now written directly into the law. Moving a district boundary by even one block requires a two-thirds vote of the parliament. The districts are therefore heavily entrenched and were not the result of either a public or an inclusive process. No justification for these districts was offered by the governing party.

Of course, not all districts in any electoral system have identical numbers of voters. But how much can districts vary before they deny equality of the vote?  The Commission for Democracy through Law (the Venice Commission), recommends no more than 10% variation as the international standard. The Venice Commission is not terribly clear about what this means, but given that the Venice Commission is working with a principle that demands that votes be weighted as equally as possible, one can guess that this means that districts should not vary by more than 10% in population overall.

The Hungarian law is fiendishly clever in appearing to come close to that standard while being miles away from it. The Hungarian Election Law (Act CCIII of 2011 – section 4(4)) mandates that the districts should not vary by more than 15%. The Venice Commission was not thrilled with the difference, but let it pass. They shouldn’t have.

A closer reading reveals the trick. The Hungarian law requires that districts vary by no more than 15% calculated from the mean number of voters in the district. This is not an overall 15% deviation, as the Venice Commission presumed, but is instead a standard that permits districts to vary by 15% below the mean and 15% above it.

An example demonstrates what a huge difference this makes. To aim at an average district containing 100 voters, a 10% overall deviation would permit districts to vary between 95 and 105 voters. (Divide 95 by the 10 voters that separate the largest and smallest districts and you get about 10%). The Hungarian law would permit districts to vary between 85 and 115 voters – 15% above the mean and 15% below the mean of 100. The gap between 85 and 115 voters in a district would be 35% overall! (Calculated the same way as above: 30/85 = 35%.) This is a huge difference that the Venice Commission did not seem to see.

In the actual districts were constructed as a result of the new election law, the variation became even larger than that. As you can see in the chart below, the smallest districts in Hungary now have about 60,000 voters while the largest districts have nearly 90,000 voters, roughly a 50% gap. (The horizontal axis shows the number of eligible voters in the new constituencies based on voter data from 2010, and the vertical axis shows the number of districts in the new scheme with that number of voters.) Not only are the actual districts highly unequal, but this variation has no apparent justification.

sizeThe Size of Parliamentary Districts in Hungary after Redistricting
Source: Calculations by Gábor Tóka, Central European University

Hajdú-Bihar County, in the eastern part of Hungary, provides a case in point. A last-minute amendment to the 2011 election law divided the city of Debrecen into two districts of highly unequal size. Now, one district has 87,278 voters and the other, right next to it, has 60,125 voters. These are very nearly the largest and smallest districts in the country, side by side, without official explanation.

The government may have given no reasons for its districts, but this huge variation in district size is not random. As Political Capital shows, the left-leaning districts are systematically 5,000-6,000 voters larger than the right-leaning districts, which means that it takes many more votes to elect someone from a left-leaning district than to elect someone from Fidesz.

The borders of these new districts also appear to be drawn to Fidesz’s advantage, since they just happen to break up the areas where the opposition alliance voters have traditionally been strongest and they scatter these opposition voters over a new Fidesz-majority landscape. Historically left-leaning districts were partitioned and blended into historically right-leaning districts, creating fewer districts where left-leaning candidates are relatively certain to win.

One of the most obvious gerrymanders occurred (again) in Hajdú-Bihar County. In the 2006 election, which went nationally by a wide margin to the Socialists, the county voted three of its nine districts for the Socialists and six for Fidesz, as you can see in the chart below, on the left. If the results from the 2006 election were tallied in the newly drawn six districts for that country, as shown on the right, Fidesz would now win every district. The map reveals that this all-Fidesz result was accomplished by drawing the districts to divide up the compact concentrations of Socialist voters so that they would become minority voters in Fidesz-dominant districts.   Examples like this one can be found all over the country, as left-leaning districts were partitioned to break up clusters of opposition voters to mix them with even more conservative voters from neighboring areas.

hajduThe US may have invented the gerrymander, and so it may seem presumptuous for an American to complain about the new districts. But the Hungarian gerrymander is different from the (also outrageous) American type. In US national elections, gerrymanders occur at the state level, which means one party cannot redistrict the whole country at once. In the US, districting plans are also subject to judicial review to check the worst self-dealing. In Hungary, however, the whole country was redistricted by one party all at once so the Hungarian gerrymander is far more decisive. And there is no judicial review to correct excesses. In addition, unlike in America where the governing parties in the states get a new shot at gerrymandering every 10 years, after each census, it will take a two-thirds vote of the parliament to change any district in Hungary’s future.

Hungarians don’t just cast votes for individual representatives in districts of the sort we have just seen, however. Hungarians cast two votes in national elections. In addition to casting ballots for representatives in the voters’ individual constituency, voters cast second ballots for party lists. Those votes are aggregated across the country and additional parliamentary seats are awarded to parties based on these results, above and beyond the seats won in the individual districts.

In the new parliament as in the old one, MPs elected both ways sit together with equal status. While this dual system of MP elections appears to mitigate the effect of the gerrymander, the new parliament, unlike the old, allocates more seats to the individual constituencies than to the party-list mandates. The new parliament features 106 district mandates and 93 party-list mandates. Since individual constituencies are awarded on a winner-take-all basis, this tilts the system toward an even more disproportionate distribution of mandates than in the prior also-disproportionate parliament.

Individual constituencies in Hungary were allocated from 1990 to 2010 in a two-round run-off system. Unless a candidate won 50% or more in the first round, a second round would be held between the highest vote-getters to determine who won the mandate. This system meant that many political parties would field candidates in round one, and then form coalitions before round two after the relative viabilities of the individual candidates could be assessed. Hungarian political culture grew up around this system so that parties were not accustomed to bargaining before any votes were cast.

The new electoral system in Hungary eliminates this second round, benefiting Fidesz, as the largest single party. It can now win districts outright without needing majority support because it only has to get more votes than any other party on the (single) election day to capture the constituency. Given that the districts have been drawn to give Fidesz an advantage overall, one can imagine other parties will have a hard time winning constituencies which have been constructed precisely so that Fidesz is the largest party.

The design of the new system means that the democratic opposition would only have a chance to win individual constituencies if the various opposition parties of the left could create a grand coalition before the election so that they didn’t run candidates against each other. But this was a result that everyone familiar with politics in Hungary knew would be hard to accomplish. The parties in the “democratic opposition” (excluding Jobbik) are sharply divided both by ideology and personality. But unless these parties could set aside their differences to unite, they would surely lose.

The announcement on 14 January that five parties in the opposition had managed to agree on a single list of candidates for the single-member districts as well as a common party list was therefore something of a political miracle.

But can the party leaders of the Unity Alliance bring all of their voters along with them? Many voters for the smaller parties on the left often don’t trust the larger Socialist Party which now dominates the coalition.  And some personalities in the mix are popular only within their own parties and unattractive to the others in the coalition. As a result, it cannot be assumed that votes for the five parties can simply be added together to produce a united whole that is the same size or even larger than the sum of the parts.

Because voters cast two ballots on election day, the individual constituencies are only part of the story, though they are the largest part. Parties will also run national lists to compete for voters’ second votes. The new conditions that came into effect since the last election actually make it easier than it was in 2010 to nominate candidates for the individual constituencies and to register parties with national lists, something that is consistent with a dominant-party strategy to divide up the opposition as much as possible.

But the party-list system also builds in incentives for small parties to join together to form a larger alliance. To be approved to run a national list, parties must field candidates in at least 27 individual constituencies in at least nine of the 19 counties plus Budapest. While this guarantees that parties are truly national, it also aggravates the problems created by the loss of the second-round runoff in the individual constituencies. Any new national list adds to the “clutter” of individual candidates in the individual constituencies and further fragments the vote.

So it makes sense, under these rules, for small parties to form a common national list. To avoid competing head-on and perhaps pushing each other below the 5% threshold for entering the parliament, small parties on the same side of the political spectrum are pushed by the logic of the system to join forces. But as soon as they do so, they run into another problem. In all elections since 1994, parties have had to meet a 5% threshold of the popular vote to gain a fraction in the parliament. For two parties that run together, the threshold rises to 10% and for three or more parties, the threshold is 15%.

If the smaller parties were going to unite for 2014, then, they ran the risk of together missing the higher threshold required of joint party lists. The rules of the game have therefore pushed the small parties of the “democratic opposition” to do what they did – which was to join with the Socialists to form Unity. Only an alliance with the larger Socialist party guaranteed that these smaller parties would be able to enter the parliament given the higher thresholds for joined lists. Because many of the smaller parties were created precisely to distance particular groups of voters from the Socialists, however, this is an uneasy alliance at best.

So that is where we were as the campaign was launched, witnessing a democratic opposition alliance whose members do not like each other much but who have to work together if they are to have any hope of ousting Fidesz given the way that the rules are structured. The public squabbling that occurred as the grand coalition went together belied the name of Unity Alliance and weakened their electoral position. They have the campaign period to convey a new unified message, but – as we will see – that is going to be very hard.

Kim Lane Scheppele: What Can the European Commission Do When Member States Violate Basic Principles of the European Union? The Case for Systemic Infringement Actions

Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and University Center for Human Values, as well as Director, Program in Law and Public Affairs, Princeton University. She is an internationally renowned expert on Hungarian constitutional law. I may add that Professor Scheppele is also a regular reader of and occasional commenter on Hungarian Spectrum. This is her most recent piece on the current Hungarian government’s disregard of European Union law.

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What can the European Union – and in particular the European Commission – do about Member States that no longer reliably play by the most fundamental European rules?   The question is now urgent because several Member States are already posing such challenges.  Treaty reform could give the Commission new powers.  But can the Commission act without waiting for the long and arduous process of treaty reform to provide new tools?    

I propose a new approach, a simple extension of an existing mechanism:  the infringement action.    The Commission could signal systemic complaints against a Member State by bundling a group of individual infringement actions together under the banner of Article 2 of the Treaty of the European Union (TEU), which guarantees:

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.

A systemic infringement action would share with ordinary infringement actions specific complaints against the national law or consistent practices of a Member State for violating particular provisions of EU law.  As a result, it would have a very concrete ground like a conventional infringement action brought by the Commission under Article 258 of the Treaty on the Functioning of the European Union (TEFU). By grouping together related complaints thematically under Article 2 TEU, however, the Commission would add the argument that the whole is more than the sum of the parts and that the set of alleged infringements rises to the level of a systemic breach of basic values.

A medical analogy might help to explain how a systemic infringement action would work.  The Commission may believe that a Member State is breaching the values of Article 2 TEU, but basing a legal action on “violating the values of the EU” alone would give the Court of Justice of the European Union (CJEU) the same task that a doctor would have in attempting to treat a general complaint of “feeling bad.”  A doctor needs a detailed set of concrete symptoms before being able to accurately diagnose a disease, just as the CJEU would need evidence of a pattern of concrete infringements before it could diagnose an Article 2 TEU disease.  Treating each symptom on its own without aggregating the symptoms into a systemic diagnosis runs the risk of failure because fixing only one symptom or another may not eradicate the disease.  Diagnosing a systemic problem in law requires the same sort of evidence as diagnosing a systemic problem in medicine.  One needs to observe the full set of relevant symptoms together to understand the fundamental problem.  Only then can one be confident of an accurate diagnosis and therefore a more effective treatment.

A systemic infringement action would enable the Commission to signal to the Court of Justice a more general concern about deviation from core principles than a single infringement action would allow.   It would also have the advantage of putting before the CJEU in one case evidence of a pattern of violations so that the overall situation in a particular Member State is not lost in a flurry of individual infringement actions, each of which might go to a different panel of judges at the Court.   The CJEU could then either agree with the Commission that the symptoms add up to a disease and find a violation of Article 2 TEU, or the CJEU could find that only certain (or even none of the) individual violations within the larger mix require treatment.

If the CJEU confirms the systemic element of the infringement action and finds a violation of Article 2 TEU, compliance should be assessed in a way that addresses both the particular infringements and the larger breach of EU values.  In such a case, a Member State should not be permitted simply to make small fixes to correct individual violations without addressing the larger threat to the principles of Article 2 TEU.

European Union flags

If continued systemic infringement occurs in violation of a CJEU decision, the Commission might then expand its range of sanctions beyond the current set.  After all, if a Member State has been found to persistently challenge fundamental values of the EU, then its compliance with burdensome remedies cannot be assumed.   Fines levied through an Article 260 TFEU action might therefore be collected by putting in escrow some portion of the Member States’ EU funding streams until the Member State complies. This power to withhold funds could be given to the Commission through secondary legislation of the sort that has already been used for other conditionalities in funding, like the powers made available under the Excessive Deficit Procedure.  This would provide a legal basis for the proposal by the foreign ministers of Germany, Denmark, the Netherlands and Finland that the Commission find ways to cut the funds of Member States that are in persistent and serious violation of EU principles.  Allowing the Commission to stop the flow of funds following confirmation by the CJEU of both a systemic violation and continued noncompliance would ground this proposed sanction in a multi-institutional judgment like other current sanctions, giving the Commission a more “constitutional” basis for its actions.

This suggestion to withhold EU funds is the only part of my proposal that calls for any additional legal authority and such authority can be provided by secondary legislation rather than through treaty reform.  The other parts of this proposal can be accomplished under existing authority.   The systemic infringement action therefore gives the Commission a new tool to use now in the fight against democratic backsliding without the need for treaty reform.

In the sections that follow, I will explain 1) how a systemic infringement action would work, 2) how assessment of compliance might follow and 3) how fines might be assessed if there is continued noncompliance.  Throughout, I will illustrate this proposal using the present situation in Hungary, since that is the leading example that has caused many to worry about the Commission’s ability to enforce the treaties.

Part I:  Why a systemic infringement action?

Infringement actions under Article 258 TFEU are brought by the Commission to challenge a specific and concrete violation of EU law by a Member State, and they carry the assumption that these violations occur in a Member State that is otherwise generally compliant.  But what if the conduct of a Member State raises serious questions about its overall willingness to observe EU law, particularly when a Member State threatens basic EU principles of democracy, rule of law and protection of human rights?

Ordinary infringement actions are important, but they have so far been too small bore to address the structural problems that persistently noncompliant states pose.  If a Member State is threatening the basic values of the treaties, chances are that it is violating more than one narrow slice of EU law.   Under present practice, however, the Commission picks its battles, so it currently fails to bring many actions that it might otherwise be justified in launching.  At the moment, only the major or particularly obvious violations are raised although a Member State may pose many more challenges to EU law.

Even if the Commission were to multiply individual infringement actions to signal greater concern about a particular Member State, however, the Court of Justice is not institutionally able to see the patterns at issue if the cases are filed as they presently are:  one by one.  The Court of Justice has so many different panels of judges in its normal operation that it is quite possible that each discrete infringement action against a particular Member State could be considered by a different panel at the Court without any specific judge ever seeing the patterns that would demonstrate the more serious threat to the basic values of the treaties.   The Commission might be able to overcome some of this fragmentation by requesting that Court of Justice assemble a Grand Chamber to hear the most important complaints against a particular Member State.  But these individual infringement actions would still not give the Court of Justice the capacity to take an overall pattern of noncompliance as an important fact in and of itself beyond any one specific infringement.  The evidence of the linkages among infringing laws and practices would be beyond the boundaries of the specific case that the judges are asked to review.   Each individual infringement action presently stands on its own ground alone.

The structural weakness of the individual infringement action was illustrated by the creative, bold, important and successful case that the Commission brought with regard to the decapitation of the leadership of the judiciary that the Hungarian government accomplished through the sudden, forced early retirement of senior judges.   By lowering the retirement age from 70 to 62 with immediate effect, the Hungarian government forced the departure of the most senior 10% of the judiciary, including fully one quarter of the Supreme Court justices and half of the appeals court presidents.  The government then replaced these senior judges with judges of its own choosing, using a new legal procedure that put the choice of such judges into the hands of the president of a new political institution, the National Judicial Office, taking that power away from the judiciary itself.  Suddenly a judicial appointments mechanism that had been previously insulated from politics was supplanted by a much more directly political process, just when much of the court leadership was suddenly open to be filled with new judges.  The government also gave the president of the National Judicial Office the discretionary power to determine whether any sitting judge should be promoted, demoted, reassigned or disciplined as well as the discretionary power to move any case in the country from a crowded court to a less crowded one, thereby effectively picking the judges who would hear each individual case.  The lowering of the retirement age was therefore only the first step in an even more worrying process, disproportionately opening up the most senior judgeships for replacement so that a government-vetted official could both choose the new leadership of the judiciary and also gain new powers over other sitting judges.

The Venice Commission’s multiple reports on the state of the Hungarian judiciary strongly criticized the Hungarian judicial reforms, particularly the outsized powers of the president of the National Judicial Office who now functionally controls the judiciary.  The International Bar Association (IBA) also reviewed Hungarian developments and concluded that “the reforms clearly contravened Hungary’s international obligations to uphold the independence of the judiciary and the right to a fair trial.”  But the European Commission only challenged the sudden lowering of the retirement age as a violation of EU anti-discrimination law. The European Commission’s action in the matter of judicial retirements was successful; the Court of Justice delivered a strong judgment against Hungary in that case.  But the Commission and therefore the Court did not analyze the removal of senior judges as a problem of judicial independence, which was the larger issue identified by the Venice Commission and the IBA.

Why would a systemic infringement action do any better?   A systemic infringement action could put the various pieces of the puzzle together as a coherent whole under Article 2 TEU to enable the Commission to demonstrate that the specific issue (e.g. the lowering of the judicial retirement age) is connected to a larger pattern (e.g.  a set of sudden changes to the way that judges are appointed, promoted, demoted and disciplined in Hungary).   This set of legal changes could then be presented as evidence of a systemic threat to judicial independence which itself is a crucial component of the rule of law as protected by Article 2 TEU.  A systemic infringement action under an Article 2 TEU banner would then enable the Court of Justice to assess systemic violations, which would be necessary to establishing a threat to the basic values of the treaties.

If the Commission were reluctant to invoke the very general principles of Article 2 TEU to bind together a number of individual complaints, it could instead bring a systemic infringement action under Article 4(3) TEU.  The Article 4(3) TEU “fidelity principle” requires Member States to “refrain from any measure which could jeopardize the attainment of the [European] Union’s objectives.”  Article 4(3) TEU actions have been brought before; direct Article 2 TEU actions have not.  Perhaps the Commission would feel on more familiar ground going the Article 4(3) TEU route, grouping together a number of specific complaints as evidence that a Member State government is systematically thwarting the achievement of EU objectives.  Given that the national judiciaries are the primary mechanism for enforcing EU law in the Member States, national political domination of the judiciary would raise Article 4(3) TEU issues as well. Either way, a systemic infringement action, would still convey the message that the whole is more than the sum of the parts.

Regardless of the specific overarching systemic theory invoked, however, a set of specific alleged infringements should be listed in a systemic complaint.   Maintaining democracy, guaranteeing the rule of law, protecting human rights and encouraging the attainment of EU objectives are important principles in the abstract, but a little vague when one gets down to the ground.  The diversity of different ways that Member States realize these general principles makes it difficult to pin down what precisely is wrong unless a systemic and irregular pattern is alleged in which a series of individually worrying infringements add up to something larger. An Article 2 or Article 4(3) TEU proceeding should therefore use a set of specific objections as its foundation so that the Court of Justice is given explicit laws and practices to examine and so that a Member State is given a concrete agenda to address.  At the same time, the set of infringement actions brought together in one case should communicate to the Court of Justice that the Member State’s violations are systemic, structural, and cannot be fixed only with small patches of technical compliance.

Why hasn’t the Commission brought such a systemic action to date?    Instead of bringing a set of related infringement actions together to show a pattern, the Commission seems to have taken the opposite view:   that it cannot and should not launch all infringement actions that it could possibly bring even when a Member State has generated many systemic concerns.  The Commission, it would appear, has been selective in picking its battles. As a general matter, this is no doubt a wise strategy. The Commission relies on the continued cooperation of the Member States and might well hope that a strategy of launching only the most easily proven or the most serious offenses would save both itself and the Court of Justice from delving too deeply into the internal affairs of any single Member State.   Of course, most infringement actions are resolved before a formal legal action is necessary in any event so the Commission is always more active than its formal actions before the Court of Justice would indicate.  But if a Member State persists in failing to respond while generating concern that it is undermining EU values in other ways, perhaps a stronger approach is needed.   And the systemic infringement action provides that option.

The Commission should not approach a systemic infringement action simply as a yoked-together set of individual infringement actions it would otherwise bring in a business-as-usual world where it picks its battles.  The bundling of infringement actions into a systemic complaint will probably change the threshold for deciding which concrete violations to allege as part of the mix.  The Commission could therefore decide to challenge a particular law or practice of a Member State because it constitutes part of a worrisome pattern even if that offending law or practice, taken alone, would not rise to the level that would normally have caused the Commission to bring a separate infringement action.  In fact, one crucial argument in favor of the systemic infringement action is that, by putting together a set of alleged violations, it strengthens the case for each individual allegation by providing a context that changes the interpretation of a particular practice in a larger scheme of things.   The lowering of the judicial retirement age in Hungary, for example, egregious as it was taken alone, is an even larger problem in the context of the overhaul of the judicial appointments process that was underway at the same time.

Of course, I am not arguing that the Commission should invent infringements where none can be found or to make legal mountains out of inconsequential molehills.  But what emerges as an important element of a broader case may depend on its interaction with other related laws and practices.  These interactions need to be brought into view in the same legal action so that the Court of Justice can assess the whole picture.   Broadening the Commission’s field of vision to evaluate the interaction effects might lead to a different sense of where the threshold should lie for pursuing an individual infringement action, especially one that is bundled with others to allege a systemic threat to the values of the EU.

The bundling of multiple individual infringements under the Article 2 TEU heading puts some new options before the Court of Justice.  The Court could confirm some set of the individual allegations along with a finding of systemic violation of Article 2 TEU.  This would permit the Court to develop an Article 2 TEU jurisprudence which would give further guidance to Member States and to EU bodies about the meaning of the core constitutional principles of the Union.   It would also, as I will argue below, provide a better framework for achieving more thorough-going compliance.  Alternatively, the CJEU could decide in any particular case that Article 2 TEU is not infringed but that nonetheless some of the particular alleged violations in the set are confirmed, not rising to the level of systemic violation.  In either event, the CJEU should evaluate both the specific alleged violations and the systemic allegation to see whether the whole adds up to more than the sum of the parts or whether all, some or none of the individual alleged infringements should be confirmed on their own.  The Commission’s allegation of systemic infringement would still have to be confirmed by the Court of Justice to find an Article 2 TEU violation, but the Court also has a number of intermediate judgments it could make between finding no violation and finding a systemic violation.

Part II:  Assessing Compliance

 Suppose that the Commission were to bring a systemic infringement action and the Court of Justice agreed that Article 2 or Article 4(3) TEU was indeed violated.    What then?

 Successful systemic infringement actions should call for systemic compliance.  A Member State should not just be required to fix individual violations that make up the problematic set but also be required to address the systemic threat.   Compliance should therefore be assessed differently in the systemic infringement action than it is in an individual infringement action to encourage more than superficial patches.  Instead, the focus should be on the overall effect of the reforms on the restoration of adherence to important EU values.

A concrete example makes the point more clearly.  In the successful Commission infringement action against lowering the judicial retirement age in Hungary, the Hungarian government was ordered to reinstate the judges to comply with the judgment of the Court of Justice.  After waiting until it had replaced most of the prematurely retired judges with new appointees, the Hungarian government finally indicated that it would comply by allowing back the senior judges who wanted to return to the judiciary.  But the government also said that these prematurely retired judges would not be returned to their former leadership positions because those leadership positions had already been filled.  As a result, the judges who insisted on going back to judging were generally assigned by the president of the National Judicial Office to different and lower positions than the ones they left.  In the meantime, while this process of engaging in slow-motion compliance was going on, the Hungarian government offered compensation to the prematurely retired judges if they would not go back to work, compensation most of the judges accepted.  As a result, very few judges have actually returned to judging and none have returned to their leadership posts.

Take one example.  Gergely Mikó, the recently appointed head of the important Metropolitan Court in Budapest, noted that 14 of the 70 judges on his court (20%) were forced to retire by the change in the retirement age.  As of July 2013, only one had returned.  That means that 13 of the 14 judges were successfully removed from the court by the change in the judicial retirement age, despite the successful infringement action.   And the court is under new management because change in this court started at the top and disproportionately affected the leadership of the institution.

The Commission put itself in a weak position to insist on a systemic solution by bringing the individual infringement action under EU discrimination law.  In discrimination cases, the breach is usually envisioned as violation of an individual right to be treated fairly rather than as an institutional harm.  An age discrimination action alleges that the older individuals were treated arbitrarily by a sudden change in the retirement age, not that the institution is worse off when it loses its senior judges. Therefore, compensation of the individuals who had been unjustly harmed would count as a reasonable remedy especially when, as the Hungarian government argued, new judges had already been appointed to the old judges’ positions and these new judges also had rights and reasonable expectations to consider.  So despite the justifiably aggressive infringement action brought by the Commission, an action that the Court of Justice expedited in response to the fact that the removals of senior judges on grounds on age were ongoing as the litigation proceeded, the Hungarian judiciary now goes on under new management, and most of the prematurely retired judges have never gone back to work.  The Commission, as a result, made virtually no difference in the situation on the ground with regard to the independence of the judiciary, even if individual judges were eventually compensated.

European Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding initially said that she would understand compliance in the Hungarian judicial retirement case to mean that the fired judges would be reinstated in their prior positions.   But if the judges, for whatever reason, no longer want to go back, what can she do?   Most of the judges were satisfied by the monetary compensation that the Hungarian government gave them when they won their actions in the domestic labor courts, so how can the Commission insist on the reinstatement of judges who take the money and leave?   Perhaps this was why Vice President Reding eventually declared victory in the matter without continuing to insist on the return of the prematurely retired judges.  In her major rule of law speech in September 2013, she said:

Hungary has respected – as the rule of law requires – the judgement of the Court of Justice of November last year which confirmed the Commission’s view that the anticipated mandatory retirement of 10% of the Hungarian judiciary was not in line with EU law. President Barroso and I were intensely involved in bringing all these matters to a satisfying conclusion from a legal perspective.

The framing of the infringement action by the Commission as a small-bore problem of age discrimination enabled the Hungarian government to fix the problem with a small-bore patch of technical compliance:  compensation.  But the whole infringement action and its enforcement missed the larger point.   Even with the quick and strong adverse CJEU judgment and compliance on the Hungarian government’s part, the Commission has not been able to influence the entrenchment of political control over the judiciary in Hungary.   The threat to judicial independence was not adequately addressed because it was not adequately raised.

A systemic infringement action should therefore not only open up a wider range of allegations to be considered jointly, but should also – when an Article 2 TEU infringement is found – open up a wider range of options for what would count as compliance.   If a threat to judicial independence were alleged and confirmed, then the Hungarian government would have to address more than the wishes of the specific judges affected by the one-off lowering of the retirement age.  Instead, the government would have to take measures to ensure that faith in the neutrality and objectivity of the judiciary were restored and that judges, particularly the judges who were already in office when this government came into power, were secure in their positions and could not be arbitrarily dismissed.   If the prematurely retired judges no longer want to return to their jobs, then correcting what their displacement accomplished should be part of the conversation about compliance, too.  This is why the system of appointing, promoting, demoting and disciplining judges should be raised along with the retirement age allegation, because the solution to departure of the senior judges would lie ensuring that the system for hiring new judges resisted political control.  Hungary could only come back into line with European values if its political officials could not dismiss older judges who did not owe their careers to the current governing party in order to replace them with newer judges more to the governing party’s liking.  It would not be easy to design measures to restore judicial independence, of course, but with Article 2 TEU in play, compliance with a systemic judgment of the CJEU would require that the threat to the independence of the judiciary be addressed so that the rule of law could be restored.

When the Commission decides how to frame an infringement action in the first place, it should be guided by what it would need to accomplish in the compliance phase in order to restore fundamental EU values that were put under threat.  The Commission should therefore include in a systemic infringement action the laws and practices that would be crucial to change in order to fix the systemic problem, if the CJEU confirmed the systemic infringement.  With the judicial age discrimination case, the Commission focused attention on the unfair treatment of individuals which, important as that is, pales in comparison with the compromised integrity of the whole judicial system.  Coupling an age discrimination case with an action challenging the laws that created an overly politicized judiciary would enable the Commission to fashion a remedy along both dimensions – compensation or reinstatement for the concrete individuals affected and also a structural change to the system of judicial selection and management to ensure judicial independence was maintained.

Part III:   A New Approach to Fines:  Putting EU Funds in Escrow

What if a state remains in persistent noncompliance with basic EU principles?   In an ordinary infringement action, the Commission would go back to the Court of Justice for the assessment of a fine under Article 260 TFEU.   In a systemic infringement action, the Commission would do the same.    But, I would argue, systemic noncompliance in a case of systemic infringement should call for a different method of paying the fine.  Instead of billing the Member State to pay the fine from its domestic budget, the Commission and the Court could insist that persistent systemic violators lose their EU funds or, at the very least, have their EU funding streams suspended for as long as the violation continues.

Recently, the foreign ministers of Germany, the Netherland, Finland and Denmark wrote to the European Commission suggesting that new tools were needed to bring persistently deviating Member States into line:

At this critical stage in European history, it is crucially important that the fundamental values enshrined in the European treaties be vigorously protected. The EU must be extremely watchful whenever they are put at risk anywhere within its borders. And it must be able to react swiftly and effectively to ensure compliance with its most basic principles. We propose addressing this issue as a priority and believe that the Commission has a key role to play here.

In particular, they proposed that “as a last resort, the suspension of EU funding should be possible.”

This makes perfect sense.  The threat of withholding funds can act as a powerful motivator for a Member State to come into line with European objectives.   If a Member State still refuses, it will be clear that Europe cannot always make a Member State change its ways, but at least Europe should not have to pay to see violations of its basic values flaunted.

How would a suspension of funds be possible under EU law?   The major sanctioning mechanisms are generally embedded in the treaties, and treaty change – with a persistently noncomplying Member State as a veto player – doesn’t look very likely. Besides, the problem is now and treaty change takes years.

Secondary legislation could give the Commission the power to suspend EU funds to a persistently noncomplying Member State without requiring treaty change.   In other contexts, most notably the Excessive Deficit Procedure (EDP), secondary legislation has already permitted funds allocated for one purpose (e.g. Cohesion) to be docked for failure to comply with the requirements of a different part of EU law (e.g. Stability and Growth).   The same sort of secondary legislation could be proposed to deal with Member States that persistently refuse to comply with basic European values in the treaties, allowing EU funding streams to be cut when the Commission and the Court of Justice agree that there has been both a systemic violation and persistent non-compliance in rectifying the problem.

Before proposing a new sanctioning mechanism, however, we should consider the current architecture of existing sanctioning mechanisms within the EU.  The primary sanctions available to EU bodies in dealing with noncompliant Member States all involve multi-institutional action.   An ordinary infringement action is alleged by the Commission and confirmed by the Court of Justice.   An Article 7 TEU procedure that would result in a country losing its vote in the European Council can start with the Commission, Council or Parliament, but must be confirmed by supermajorities of both the Council and Parliament.  Putting a country under the Excessive Deficit Procedure and acting to cut EU funds as a sanction requires that the ECOFIN Council confirm a recommendation of the Commission.  A sanctioning mechanism given to one EU body that did not have another institutional check within the EU architecture would be an anomaly.   Sanctions in the EU have therefore traditionally been – and should remain – multi-institutional processes.

The suggestion of the four foreign ministers that the Commission should have greater capacity to cut funds for persistent deviation from EU norms is therefore not in the spirit of the other sanctioning mechanisms in the treaties unless it is tied to a multi-institutional process.  The ministers implied that the Commission might work with the Council to develop sanctions for persistently noncompliant states, but the process of determining whether a particular Member State has violated the treaties should, in my view, be handled as a legal rather than a political matter.  If a sanction involves an element of political membership, as Article 7 sanctions do, then a political process is appropriate.   But if the question is whether a Member State has systematically violated its treaty obligations through its own laws or practices, as a systemic infringement action alleges, then this is preeminently a legal question.  Tying the allegation of a systemic infringement of EU treaty values to a confirmation by the CJEU would keep the process both predominantly legal and relatively familiar as it would follow the pattern established for infringement actions in general.  Tying the withholding of EU funds to a systemic infringement action would provide just the sort of inter-institutional agreement that other EU sanctioning mechanisms have.

If the Court of Justice were to confirm a systemic violation of EU law and agree in an Article 260 TEU proceeding to specify a fine, the Commission might then collect the fines ordered by the CJEU by deducting the funds from EU funding streams that the EU would otherwise be paying to the offending Member State.   For this, new secondary legislation could provide the authority, on the model of the sanctions permitted under the Excessive Deficit Procedure (EDP).  There, the Commission has the power to recommend suspension of Cohesion Funds when a government fails to meet budget targets.  The Commission cannot cut funds on its own because a reverse qualified majority of the ECOFIN Council may veto the Commission proposal to do so.  But, as in the case of the systemic infringement action, the EDP ties the docking of EU funds to Member State noncompliance with treaty obligations.

The EDP, however, may tie the disciplinary sanctions only to missed budget targets and not to failure to comply with European values.  This is why the four foreign ministers initially suggested that finding “[f]urther ways to promote the rule of law within the framework of the European semester should be explored.”  The foreign ministers therefore propose policing European values by adding a more substantive conception of the rule of law to the Europe 2020 goals.

But while one can make the case for enforcing a broader understanding of the rule of law which is already listed among the objectives of the Europe 2020 plan, other important EU values outlined in Article 2 TEU are not specifically defensible in this forum.   By contrast, the systemic infringement action permits a robust defense not only of the rule of law, but also of other EU values like the maintenance of democracy and the protection of human rights.

I have argued for a Commission-CJEU mechanism for assessing fines and cutting EU funds, which keeps the sanctions tied to legal judgments rather arguing for a Commission-Council mechanism that would reflect political judgments.   For a cautionary tale about what might happen if a sanctions process for systemic violation were tied to a more political process, we can see what has happened with the EDP which engages the Commission with the Council’s ECOFIN configuration.  Shortly, after Hungary’s new constitution came into effect trailing a whole host of worrisome laws, the European Commission proposed cutting Hungary’s Cohesion Funds under the EDP, a procedure to which Hungary had been subject ever since it entered the EU in 2004 and under which Hungary had been the most persistent violator.  But the sanctions part of the EDP had never been used before against any country, which lent some credibility to the charge made by the Hungarian government that the sanctions were used selectively.  In the end, the sanctions never took effect because other Member States saw that they, too, could be in the crosshairs of the EDP for running too large a deficit in a time of fiscal crisis. Because virtually no other Member States were meeting their budget targets in 2013, cutting funds to one Member State was an untenable political sanction.   And so the sanction wasn’t used even though Hungary had the worst deficit record of any EU Member State, a bad record that dated back to long before the global financial crisis that gave Hungary a lot of company in the EDP violators category.

Hungary has provided many reasons for the EU to be concerned about its continued commitment to EU values, but the EDP sanctions could only be tied to continued deficits rather than to bad behavior more generally.   Even while the controversies were swirling around Hungary because of its controversial constitutional reforms, the country was able to get out from under the Excessive Deficit Procedure because it instituted a series of extraordinary budget measures that generated more state revenue and cut more state-funded programs without changing anything fundamental in its worrisome new constitutional structure.   From this, we can see that not only are existing mechanisms for cutting EU funds inadequate to address persistent violations of basic values, but also that secondary legislation is capable of establishing just such a sanctioning mechanism, one that cuts funds in one program because of the violations of principles established in another program.

Rather than permanently deducting fines from EU funding streams if a Member State were to be found in systemic infringement of the values of Article 2 TEU, the Commission might consider holding some particular percentage of such funds in escrow until such time as the Member State meets the criteria for systemic compliance that address the violations of Article 2 TEU.   In fact, a similar system already exists under the EDP. If a Member State is found to be in violation of fiscal targets, a certain percentage of its Cohesion Funds may be withheld as a “deposit” to the EU, which the EU holds until such time as the deficit is brought back into line.    Should the issues not be corrected within two years, the “deposit” may be converted to a “fine,” which is to say that the money would be forfeited by the Member State in question.   But otherwise, the funds may be restored if the Member State comes into compliance.   That is precisely what an escrow system would do.  The withholding of funds acts as an incentive to encourage a Member State to comply because then it would be able to draw on the escrowed funds when it does.

It may be that the reversal of systemic damage to EU values by a Member State would require substantial reforms, and if a Member State has serious and realizable plans for engaging in systemic reform, EU funds could then be released to enable the Member State to carry out this plan.   The point, as with ECJ fines more generally, is not to hurt the country and especially not its citizens, but to encourage compliance at the earliest possible moment and to provide assistance for projects that show solidarity with the European Union.

Conclusion:   The Systemic Infringement Action—An Idea Whose Time Has Come

In the last five years, European Union has been battered with a double crisis: an economic crisis that has gotten the lion’s share of attention and a moral crisis that is only now starting to sink in.   While the EU has already started to bring its institutional competencies into line with Member States’  economic commitments in order to shore up the Euro, the response to the moral crisis is still in its early days.  The Tavares Report of the European Parliament has diagnosed the problem in Hungary and shown that there is political will across the European political spectrum to do something to bring Hungary back into the European moral order.  The many reports of the Venice Commission have also shown just where the problems in the new Hungarian constitutional order lie.  It is time for the Commission to step up to the challenge and to use its existing powers to enforce the treaties in the Hungarian case.  The Commission, as guardian of the treaties, has the obligation to ensure that the institutional structures and operating rules of the Member States are brought into line with the moral commitments they made when they joined Europe just as it has the obligation to enforce the financial commitments that Member States made when they joined the Euro.

What I have proposed here is a small adjustment of a well-understood and well-accepted tool:  the article 258 infringement action.   The systemic infringement action begins from the observation that singling out particular infringements in isolation doesn’t properly identify what is wrong when a Member State poses a fundamental challenge to European values.   By bringing a set of laws, policies and practices before the Court of Justice with a holistic argument about how the pattern infringes not only specific points of European law but also its most fundamental values, the Commission can provide the Court of Justice with the evidence it needs to enforce the most important and fundamental values of the treaties.  A systemic infringement action would allow both the Commission and the Court of Justice to give concrete legal meaning to the fundamental normative obligations Member States undertake when they join the EU.

Register as Roma, vote by default for Fidesz

It can easily happen that, amid the frenzy of Fidesz legislative action over the last three and a half years, even the more observant among us misses a troubling piece of legislative action. Here is one that I at least missed. It was included in the new electoral law of 2011, officially called the Law on the Election of Members of Parliament. For the most part Law CCIII provides a description of the newly created electoral districts, and it was on these gerrymandering efforts of the framers of the bill that I initially concentrated. Yesterday a friend called my attention to an interview with Aladár Horváth, a Roma political activist, on ATV’s program ATV Start.

At the time of her telephone call I still hadn’t had a chance to see the program, but I was told that Aladár Horváth is urging his fellow Roma not to register as such because so identifying themselves will deprive them of their right to vote for party lists. The Electoral Law on the Election of Members of Parliament, ¶7§(2), reads as follows: “A citizen who belongs to a minority can vote a) for a candidate of his electoral district and b) for the list of his own nationality.” In brief, as opposed to a non-minority citizen who can vote for both a candidate and a party list, a citizen who registers as a member of a minority can vote for a local candidate and the minority list.

This is the first time that minorities in Hungary can, at least theoretically, have representation in the Hungarian Parliament. The lack of such a possibility was a major embarrassment for earlier Hungarian governments that often stood up for the rights of Hungarian minorities in the neighboring countries where in fact Hungarian parties do have parliamentary representation. Of course, it is also true that ethnic minorities in Hungary, with the exception of the Roma and perhaps the Germans, are too small to reach the threshold necessary to be represented in parliament.

The Venice Commission’s draft opinion on The Act on the Elections of Member of Parliament of Hungary welcomed this particular aspect of Law XXIII. “For the first time, special provisions aimed at favouring the participation of national minorities in parliament in the electoral legislation. . . therefore the Venice Commission welcomes the introduction of such provisions.” However, the Venice Commission seemed to have some concerns regarding the new situation faced by the minority voters. It recommended that “as voters have the right to choose between registering to vote for normal party lists or national minority lists, the law should allow such registration in a reasonably short time frame before election day. This would ensure that all voters have sufficient information to make an informed choice. However, it would be preferable to give to the voters from national minorities the possibility of choice on election day between nationality lists and party lists.”

I guess I don’t have to tell you that no such opportunity will be given to minority voters either at the time of registration or on election day. Moreover, it is very unlikely that the Roma population, undereducated and living in backward villages, will realize the pros and cons of opting for the party list versus the minority list. After all, even Viktor Szigetváry, Együtt 2014’s electoral expert, when he wrote about the new electoral system didn’t pay much attention to this particular provision of the new law. He did admit that voting for the minority list “in small measure will strengthen the majoritarian character of the whole system” but he obviously didn’t consider it a potentially serious problem.

I checked the number of people who registered in 2010 to be able to vote for minority lists in local elections. Their number is over 200,000. Under the 2011 law they will now be deprived of their right to vote for a party. Or to be more precise, by voting for the minority list they will de facto be voting for Fidesz.

The leading members of Lungo Drom,  the  representative body of Hungarian Gypsies, including the head of the organization, Flórian Farkas, are Fidesz puppets. So any Gypsy who votes for the current ethnic leadership will only help Flórián Farkas be reelected to parliament. It would be one more vote for Fidesz.

Flórán Farkas at the COÖ meeting in January 2011 / Népszabadág / Simon Móricz

Flórián Farkas at the COÖ meeting in January 2011 / Népszabadág / Simon Móricz

Farkas is an old ally of Viktor Orbán who has worked closely with Fidesz ever since 2001 when he was already the president of Lungo Drom. He signed an agreement with Fidesz-MDF at that time in which he pledged Lungo Drom’s support of these parties. After the split of MDF and Fidesz, Farkas stood by Fidesz and renewed the electoral agreement between the Roma organization and Fidesz. He has been a member of the party’s parliamentary caucus ever since 2002. He is known as someone who does nothing whatsoever for the Roma community even though he is also head of the Országos Cigány Önkormányzat (OCÖ or Nationwide Gypsy Self-government).

So, this is the situation to which Aladár Horváth called attention. The problem is that his message is pretty much lost in a sea of total indifference. For example, he gave a press conference which not even the reporters of the liberal-socialist press bothered to attend. Although he himself is making an effort to get to the Roma communities, it is unlikely that he and his friends will be able to enlighten the Roma minority about their choices and the consequences of their decision.

We can be sure of one thing. Fidesz doesn’t do anything that doesn’t serve its own interests. Just as they don’t really care about the Hungarian minority in the neighboring countries so they don’t care about ethnic minorities inside of Hungary. Their primary concern is to get extra votes from the mostly Fidesz sympathizers in Romania and Serbia and to ensure that by default the Roma end up supporting them. The rest is just talk.

Kim Lane Scheppele: In praise of the Tavares Report

Today Europe acted to hold the Hungarian government to the constitutional values that it eagerly endorsed when it joined the European Union nearly a decade ago.

The action came in the form of the Tavares Report which sailed through the European Parliament with many votes to spare.  The report provides a bill of particulars against the Fidesz government and lays out a strong program to guide European Union institutions in bringing Hungary back into the European fold.   With the passage of this report, Europe has finally said no to Prime Minister Viktor Orbán and his constitutional revolution.

The Tavares Report is by far the strongest and most consequential official condemnation of the Fidesz consolidation of power over the last three years.  And it creates a strong set of tools for European institutions to use in defending the long-term prospects for Hungarian democracy.

The report passed with a surprisingly strong vote:   370 in favor, 248 against and 82 abstentions.   In a Parliament split almost evenly between left and right, this tally gave the lie to the Hungarian government’s claim that the report was merely a conspiracy of the left.  With about 50 of the 754 MEPs absent, the total number of yes votes was still larger than the total number of MEPs of all of the left parties combined.   In short, even if all MEPs had been present, the left alone still couldn’t account for all of those votes.   And since the 82 abstentions had the effect of allowing the report to go forward, they should be read as soft “yeses” rather than undecided or negative votes.

Most of the abstentions no doubt came from Fidesz’s own party in the European Parliament, the European People’s Party (EPP).  Many EPP members signaled ahead of time that they could not back Orbán but also would not vote overtly against the position of their party, which officially supported him without whipping the votes.    FIdesz had been counting on party discipline to save it.  But now it is clear that Fidesz is terribly isolated within the EPP.

The tally on the final report was not a roll-call vote, so we do not know for sure just who voted for it in the end.  But the roll-call votes on the proposed amendments to the bill (see pp. 106-119 of this complicated document)  revealed that many members of the European People’s Party (EPP) and the even-more-conservative group of European Conservatives and Reformists (ERC) voted to keep the report from being diluted at crucial junctures.   Each attempt to weaken the report was rejected openly by 18-22 EPP votes and by 8-12 ERC votes.   We can guess that the MEPs who rejected the hostile changes must have voted in favor of the report in the end, along with even more of their colleagues who could at that point vote anonymously.

For a government that believes that majorities are everything and supermajorities are divine, it must have been hard for Fidesz to see only one-third of those in the European Parliament voting in its defense, when conservatives occupy about half of the seats.   Since many of the votes in the Fidesz column were from cranky Euro-skeptics who simply did not want the EU to gain more powers rather than from those who were solidly backing the broader Fidesz view of the world, the defeat is even more humiliating.    Where was the United European Right when Orbán needed them?   Apparently not in his camp.

When he dramatically appeared in the European Parliament for the debate yesterday, Orbán claimed that the report represented the persecution of a well-meaning right-wing government by the unified and hostile European left.

Today, with this extraordinary vote, we saw a coalition of left and right MEPs standing up together for the values of Europe.

The Tavares report is named after Rui Tavares, the Portuguese MEP who was the rapporteur on this patient and careful study of the Hungarian constitutional revolution.  He deserves much of the credit for the factually impeccable report and as well as for skillfully guiding it through a complicated and perilous process.   Despite repeated attempts to amend the report, gut its strong conclusions and weaken its remedies by Fidesz MEPs and their allies, all efforts to change the report in any substantial way failed at every stage.

Rui Tavares

Rui Tavares

With its acceptance today of the Tavares Report, the European Parliament has created a new framework for enforcing the principles of Article 2 of the Treaty of the European Union, which proclaims that 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.”

So what, concretely, does the report do?  It puts a very clever system of monitoring and assessment in place.    While there are many elements in the report, the most important four elements are these, identified by paragraph number in the report as voted by the Parliament today:

  1.   An “Article 2 Alarm Agenda” which requires the European Commission in all of its dealings with Hungary to raise only Article 2 issues until such time as Hungary comes into compliance with the report (para. 69).  This Alarm Agenda effectively blocks all other dealings between the Commission and Hungary until Hungary addresses the issues raised in the report.
  2. A “Trilogue” (a three-way dialogue) in which the Commission, the European Council and the European Parliament will each delegate members to a new committee that will engage in a close review of all activities of the Hungarian government relevant to the report (Para. 85).   This committee is charged with assessing the progress that Hungary is making in complying with the list of specific objections that the report identifies.  The Trilogue sets up a system of intrusive monitoring, much more intrusive than the Excessive Deficit Procedure (EDP) from which Hungary just escaped.   Under the EDP, European bodies only looked at the budget’s bottom line to determine whether Hungary’s deficit was within acceptable bounds.  Under the Trilogue, the committee can examine anything that is on the long list of particulars that the report identifies as within its scope.
  3. A “Copenhagen Commission” or high-level expert body through which a panel of distinguished and independent experts will be assigned the power to review continued compliance with the Copenhagen criteria used for admission to the EU on the part of any member state (para. 78-80).   The idea behind this body, elaborated in a report by my Princeton colleague Jan-Werner Müller, is that non-political experts should be given the task of judging whether member states are still acting on the values of Article 2.   Since Orbán kept claiming double standards and dirty politics all of the way through this process in the European Parliament, a Copenhagen Commission consisting of impeccable experts and modeled on the Council of Europe’s Commission for Democracy through Law (the Venice Commission) would move the process of fact-finding and assessment from political officials to non-partisan experts.
  4. And in the background, there is still Article 7 of the Treaty of the European Union.  Article 7, which identifies a procedure through which an EU member state can be deprived of its vote in the European Council and therefore would lose representation in the decision-making processes of the EU, is considered the “nuclear option” – unusable because extreme.   But the Tavares Report holds out the possibility of invoking Article 7 if the Hungarian government does not comply with the monitoring program and reform its ways  (para. 86).    Because the Tavares Report lays out detailed expectations of the Hungarian government, the Parliament and the Council who would have to vote on Article 7 in the end would have a strong factual record to work with if they decided to go nuclear.

These are important tools in the toolkit that European institutions can now use to ensure that a member state of the European Union maintains its European constitutional commitments.

Yesterday at the plenary debate, both Commission President José Manual Barroso and Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding indicated their willingness to follow the Parliament’s direction.    We can therefore expect an eager uptake from the Commission on the elements of the report that require the Commission’s active participation.

But perhaps the most breathtaking part of the report is the list of what these various monitoring bodies can examine.    Here it is worth quoting at length from the report itself, because the scope and breadth of the complaints against the Hungarian government indicate that these monitoring processes will be authorized to look at the most fundamental elements of what it means to be a robust democracy committed to the rule of law and the protection of human rights.  Here is the list of items that the Hungarian government must address, taken from para. 71 of the report, where the Parliament . . .

Urges the Hungarian authorities to implement as swiftly as possible all the measures the European Commission as the guardian of the treaties deems necessary in order to fully comply with EU law, fully comply with the decisions of the Hungarian Constitutional Court and implement as swiftly as possible the following recommendations, in line with the recommendations of the Venice Commission, the Council of Europe and other international bodies for the protection of the rule of law and fundamental rights, with a view to fully complying with the rule of law and its key requirements on the constitutional setting, the system of checks and balances and the independence of the judiciary, as well as on strong safeguards for fundamental rights, including freedom of expression, the media and religion or belief, protection of minorities, action to combat discrimination, and the right to property:

On the Fundamental Law:

–             to fully restore the supremacy of the Fundamental Law by removing from it those provisions previously declared unconstitutional by the Constitutional Court;

–             to reduce the recurrent use of cardinal laws in order to leave policy areas such as family, social, fiscal and budget matters to ordinary legislation and majorities;

–             to implement the recommendations of the Venice Commission and, in particular, to revise the list of policy areas requiring a qualified majority with a view to ensuring meaningful future elections;

–             to secure a lively parliamentary system which also respects opposition forces by allowing a reasonable time for a genuine debate between the majority and the opposition and for participation by the wider public in the legislative procedure;

–             to ensure the widest possible participation by all parliamentary parties in the constitutional process, even though the relevant special majority is held by the governing coalition alone;

On checks and balances:

–             to fully restore the prerogatives of the Constitutional Court as the supreme body of constitutional protection, and thus the primacy of the Fundamental Law, by removing from its text the limitations on the Constitutional Court’s power to review the constitutionality of any changes to the Fundamental Law, as well as the abolition of two decades of constitutional case law; to restore the right of the Constitutional Court to review all legislation without exception, with a view to counterbalancing parliamentary and executive actions and ensuring full judicial review; such a judicial and constitutional review may be exerted in different ways in different Member States, depending on the specificities of each national constitutional history, but once established, a Constitutional Court – like the Hungarian one, which after the fall of the communist regime has rapidly built a reputation among Supreme Courts in Europe – should not be subject to measures aimed at reducing its competences and thus undermining the rule of law;

–             to restore the possibility for the judicial system to refer to the case law issued before the entry into force of the Fundamental Law, in particular in the field of fundamental rights;

             to strive for consensus when electing the members of the Constitutional Court, with meaningful involvement of the opposition, and to ensure that the members of the court are free from political influence;

–             to restore the prerogatives of the parliament in the budgetary field and thus secure the full democratic legitimacy of budgetary decisions by removing the restriction of parliamentary powers by the non‑parliamentary Budget Council;

–             to provide clarifications on how the Hungarian authorities intend to remedy the premature termination of the term of office of senior officials with a view to securing the institutional independence of the data protection authority;

On the independence of the judiciary:

–             to fully guarantee the independence of the judiciary by ensuring that the principles of irremovability and guaranteed term of office of judges, the rules governing the structure and composition of the governing bodies of the judiciary and the safeguards on the independence of the Constitutional Court are enshrined in the Fundamental Law;

–             to promptly and correctly implement the abovementioned decisions of the Court of Justice of the European Union of 6 November 2012 and of the Hungarian Constitutional Court, by enabling the dismissed judges who so wish to be reinstated in their previous positions, including those presiding judges whose original executive posts are no longer vacant;

–             to establish objective selection criteria, or to mandate the National Judicial Council to establish such criteria, with a view to ensuring that the rules on the transfer of cases respect the right to a fair trial and the principle of a lawful judge;

–             to implement the remaining recommendations laid down in the Venice Commission’s Opinion No CDL-AD(2012)020 on the cardinal acts on the judiciary that were amended following the adoption of Opinion CDL-AD(2012)001;  [NOTE:  Venice Commission reports on Hungary can be found here.]

On the electoral reform:

–              to invite the Venice Commission and the OSCE/ ODIHR to carry out a joint analysis of the comprehensively changed legal and institutional framework of the elections and to invite the ODIHR for a Needs Assessment Mission and a long and short term election observation.

–             to ensure balanced representation within the National Election Committee;

On the media and pluralism:

–             to fulfil the commitment to further discuss cooperation activities at expert level on the more long‑term perspective of the freedom of the media, building on the most important remaining recommendations of the 2012 legal expertise of the Council of Europe;

–             to ensure timely and close involvement of all relevant stakeholders, including media professionals, opposition parties and civil society, in any further review of this legislation, which regulates such a fundamental aspect of the functioning of a democratic society, and in the process of implementation;

–             to observe the positive obligation arising from European Court of Human Rights jurisprudence under Article 10 ECHR to protect freedom of expression as one of the preconditions for a functioning democracy;

–             to respect, guarantee, protect and promote the fundamental right to freedom of expression and information, as well as media freedom and pluralism, and to refrain from developing or supporting mechanisms that threaten media freedom and journalistic and editorial independence;

–             to make sure that objective, legally binding procedures and mechanisms are in place for the selection and appointment of heads of public media, management boards, media councils and regulatory bodies, in line with the principles of independence, integrity, experience and professionalism, representation of the entire political and social spectrum, legal certainty and continuity;

–             to provide legal guarantees regarding full protection of the confidentiality-of-sources principle and to strictly apply related European Court of Human Rights case law;

–             to ensure that rules relating to political information throughout the audiovisual media sector guarantee fair access to different political competitors, opinions and viewpoints, in particular on the occasion of elections and referendums, allowing citizens to form their own opinions without undue influence from one dominant opinion‑forming power;

On respect for fundamental rights, including the rights of persons belonging to minorities:

–             to take, and continue with, positive actions and effective measures to ensure that the fundamental rights of all persons, including persons belonging to minorities and homeless persons, are respected and to ensure their implementation by all competent public authorities; when reviewing the definition of ‘family’, to take into account the legislative trend in Europe to broaden the scope of the definition of family and the negative impact of a restricted definition of family on the fundamental rights of those who will be excluded by the new and more restrictive definition;

–             to take a new approach, finally assuming its responsibilities towards homeless – and therefore vulnerable – people, as set out in the international treaties on human rights to which Hungary is a signatory, such as the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, and thus to promote fundamental rights rather than violating them by including in its Fundamental Law provisions that criminalise homeless people;

–             calls on the Hungarian Government to do all in its power to strengthen the mechanism for social dialogue and comprehensive consultation and to guarantee the rights associated with this;

–             calls on the Hungarian Government to increase its efforts to integrate the Roma and to lay down targeted measures to ensure their protection. Racist threats directed at the Roma must be unequivocally and resolutely repelled;

On freedom of religion or belief and recognition of churches:

–             to establish clear, neutral and impartial requirements and institutional procedures for the recognition of religious organisations as churches, which respect the duty of the State to remain neutral and impartial in its relations with the various religions and beliefs and to provide effective means of redress in cases of non‑recognition or lack of a decision, in line with the constitutional requirements set out in the abovementioned Decision 6/2013 of the Constitutional Court;

One more item was added to this list by amendment from Rui Tavares in the Parliament this morning:

– to cooperate with the European institutions in order to ensure that the provisions of the new National Security Law comply with the fundamental principles of the separation of powers, the independence of the judiciary, respect for private and family life and the right to an effective remedy.

In short, this is a huge list of items, which together constitute the core of the Fidesz power grab.  This section of the report identifies the list of things that the Hungarian government must now change, and the mechanisms I identified above are the key ones through which compliance will be monitored and assessed.

It is hard to imagine a more sweeping indictment of the Fidesz constitutional revolution in Hungary over these last three years.

But back to where we started:  with today’s vote in the European Parliament.   This long list of offending actions of the Hungarian government was agreed to by left and right in the European Parliament, by a large majority and with serious tools to ensure that the Hungarian government changes its ways and returns to the path of democracy, rule of law and respect for human rights.

The European Parliament is the most diverse and democratic institution in Europe.  One day when the history of the European constitution is written, the Tavares Report and its enthusiastic acceptance in the European Parliament will stand for Europe at its best.

The European Parliament’s debate on Hungary

I spent almost three hours watching the debate in the European Parliament on the Tavares report. We discussed this report at length at the time of its passage in the LIBE Commission of the European Parliament. In addition, I published Rui Tavares’s letter to the Hungarian people both in English and in Hungarian. So, the readers of Hungarian Spectrum are aware that the report is a thoroughly researched document that in many ways echoes the findings of the independent judges of the Venice Commission of the Council of Europe.

I found two good summaries of the debate, both in Hungarian. One appeared in Népszabadság and the other on the new Internet website called 444! But it is one thing to read a summary and another to see the debate live. Just to watch Viktor Orbán’s face was itself educational. Sometimes he looked vaguely amused, but most of the time his smile was sardonic. Who can forget that disdainful expression on Orbán’s face when one of his critics, Guy Verhofstadt, the leader of the liberals in the European parliament and former prime minister of Belgium, mentioned the name of  György Konrád, “the great Hungarian writer”? And when he heard something he didn’t like, Orbán raised his eyebrows and shook his head in disbelief. He considered all criticism utterly baseless and, through body language and facial expressions, made no secret of it. It’s too bad that most of the people in the chamber didn’t see all that since Orbán sat in the front row.

Viktor Orbán listening to the speeches / Reuters, Vincent Kessler

Viktor Orbán listening to the speeches / Reuters, Vincent Kessler

Unfortunately the camera didn’t show Orbán when several people tried to explain to him that his concept of democracy is peculiar. He believes in the “dictatorship of the majority” or “majoritarian rule.” Verhofstadt even invoked John Stuart Mill’s words on the subject in his work On Liberty. In fact, one of the major criticisms centered around the nature of democracy and whether Hungary can still be called a democracy. If one were to ask Verhofstadt he would say: “No, Hungary is not a democracy anymore but ‘demokratúra’ as György Konrád called it.” Several other critics agreed with Verhofstadt although they may not have been so explicit.

A second core topic was the question of freedom and the Orbán government’s “war of independence” against the European Union. Several people expressed their bafflement at the very idea of defending the country from a Union to which Hungary belongs. Actually, here again two worldviews clashed. The one held by Viktor Orbán and his entourage maintains that nation states are the only legitimate formations and that they shouldn’t be superseded in any way by a supranational entity such as the European Union. If one holds this view, as Orbán does, then it is perfectly understandable that he defends his nation against the encroachment of the European Union. The problem is that Hungary joined the European Union of its own volition and thereby its government is obliged to follow EU rules. Orbán attempts to resolve this apparent conflict by claiming that the Union is overstepping its authority, and therefore he has every right to resist its attempt at a “guardianship” that he will never accept.

Another important topic of discussion was Orbán’s interpretation of the criticism of his government as an attack on Hungary and the Hungarian people. Several critics rejected this view, making it clear that their criticisms are directed against the Orbán government and not the Hungarian people. In fact, some of the speakers argued that in their opinion it is the Hungarian people who must be shielded against the authoritarian behavior and laws of their own government.

As for Viktor Orbán, he had two opportunities to speak. At the beginning, right after Rui Tavares and Juán Manuel Barroso, and at the end, just before the leaders of the various parliamentary caucuses could answer him. In his first speech he was quite polite and a great deal less aggressive than is his wont. However, after listening to the debate where the Christian Democratic and Conservative voices were drowned out by speeches delivered by the liberals, socialists, and greens, Orbán returned to his true self. As Gabriella Zimmer (a German socialist) said, Orbán didn’t come to Strasbourg “to debate”; he came to express his anger at what he considers to be interference in Hungarian domestic affairs that are within the sole jurisdiction of the Hungarian government, parliament, and courts. He finished his speech with a refusal to accept tutelage from Brussels. For good measure he accused them of  having double standards and of defending the multinational corporations and banks. I had the feeling that by that time Orbán believed that he had nothing to lose. It was no longer necessary to try to mollify the EU parliamentarians. No matter what he does, I suspect he reasoned, the vote will go against him.

And a few more words about the performance of Fidesz and Jobbik MEPs. What can I say? It was embarrassing. Szájer’s comments were the most outrageous. He was not on the list of official speakers but he asked to be recognized perhaps three times. In the first instance he outright lied when he announced that foreign investment was never greater in Hungary than in the last two or three years. Then he claimed that the members of the European Union are afraid of the truth and that’s why they don’t want to give Orbán the opportunity to speak. Both Verhofstadt and Martin Schulz, the president of  the EP, corrected Szájer. After all, they were the ones who asked Viktor Orbán to come to the plenary session of the European Parliament. But that was not enough for Szájer. He retorted that even in Stalin’s show trials more time was allotted to the accused than to the accusers. Well, that’s when Martin Schulz’s patience ran out. He reprimanded Szájer for making any comparison between Stalin’s show trials and the European Union. But Szájer is not the kind of guy who knows when to stop. He got up again and tried to explain away his unfortunate remark. He repeated his reference to Stalin’s show trials and added that it was only the time limit that he had in mind. Schulz was not impressed and rebuked him again. Szájer did a disservice to the Fidesz cause.

Kinga Gál, another Fidesz MEP, was one of the official speakers. She didn’t fare any better than Szájer. In her speech she challenged the democratic nature of the European Parliament that voted in committee for the Tavares report. Schulz gave her a piece of his mind. He told her that it is impossible to claim that majority rule in Hungary is perfectly legitimate while questioning the democratic nature of majority rule in the European Parliament. After all, the majority of LIBE members voted for the Tavares report.

The third Fidesz MEP, Ágnes Hankiss, asked to raise a “question.” It turned out that she in fact planned to deliver a lecture on the injustices of the Tavares report. Schulz interrupted her, saying that she was abusing the privilege of posing questions. Hankiss tried to go on but was stopped.

And if that weren’t enough, we had the privilege of listening to Krisztina Morvai (Jobbik) twice. No EU parliamentary caucus accepted Jobbik and therefore they sit as unaffiliated members. Thus she had the privilege of speaking twice, just as the other leaders of the various parties. She sported a blouse adorned with Hungarian folk motifs and held up a sign reading “HUNGARY ≠COLONY.” Otherwise, although Orbán emphasized that he is the one who is most fiercely attacked by the far-right Jobbik, Morvai defended Fidesz and its policies all the way while accusing Viviane Reding of meddling in Hungarian affairs. Her second speech was especially remarkable. She recalled her days working with battered women who often thought that they could change their abusive husband’s behavior by pleasing him, working harder, and being the best of housewives. But eventually when the husband’s behavior remained the same, they came to the conclusion that there was only one remedy: divorce. So, Hungary should pack up and leave the Union if this abuse continues. After that ringing defense of Fidesz it will be difficult for Orbán to maintain his fierce opposition to the far right. After all, they speak the same language and Jobbik fights alongside Fidesz for the “honor of Hungary.” Frank Engel (Luxembourg EPP member) sarcastically remarked immediately afterwards that he hoped that “Ms Morvai has not just offered to go into coalition with Fidesz.”

The vote will take place tomorrow at 11:30 European time or 5:30 EDT. I will be watching.