There has been much talk for quite some time now about the need to condemn, if not sanction, Hungary for its constitutional amendments, a lack of loyalty toward Brussels on the redistribution of migrants, and then a legislative package that came to be known as the Stop Soros laws. Poland went through a similar, albeit somewhat different, process in 2017 with the decision by the European Commission.
The case against Hungary is based on a report by Judith Sargentini, a Dutch green MEP from the GroenLinks party. The report highlights the suppression of freedom of the press, pinpoints problems related to the independence of the judiciary, abuses of EU subsidies, minority and refugee rights violations, as well threats to the existence of authoritative NGOs and European University. It is worth noting that the same MEP has criticized judicial reform in Poland and promised that Romania would be up for review if European parliamentarians agree to the relevant proposals by the green MEPs. The European Parliament Committee on Civil Liberties, Justice and Home Affairs is set to send a mission to Malta and Slovakia with a view to evaluating developments regarding the killing of journalists and corruption.
This shows that Hungary is by no means alone and could be drawn into a much larger campaign by the right-thinking and well-wishing MEPs from the left of the political spectrum.
On Wednesday, September 12, the European Parliament approved the report and triggered Article 7 of the EU Treaty against Hungary with 448 MEPs voting in favor, 197 against and 48 abstentions. All of this took place with just six months left for this legislature. The European Commission and the head of the European Council will also be up for renewal next year, meaning that the new leadership will inherit the Hungarian and Polish cases.
From a technical standpoint this process could unfold in the following manner: first, it has to be said that what is currently in question is not a serious and persistent breach of EU values by Hungary but only the risk of a breach, as described in Article 7, Par. 1 of the EU Treaty. It is this problem that the European Council will have to decide on. “The Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is the clear risk of a serious breach by a Member State of EU values. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.” Accordingly, the procedure includes a discussion, a condemnation, and enables the defending country to justify its actions, but says nothing about sanctions. In addition, the dialogue between the European Council and Hungary can last for an indefinitely long period of time, since the EU Treaty does not set deadlines.
Of course, the European Council may well determine sometime in the future the existence of a serious and persistent violation of EU values by a member state, but this would require a separate procedure. Decisions of this kind have to be made unanimously, but this prospect is so slim that it can be discussed only as a remote theoretical possibility rather than something that will actually happen. Having come to the conclusions described above, the European Council must hear Hungary’s position and only after that it can either launch (or refuse to launch) the procedure to suspend specific rights arising from the Treaties. This may not necessarily mean suspending the voting rights of the country’s representative in the European Council. This is the most serious step that is mentioned in the EU Treaty and only as one of the possible options among many. This decision requires a qualified majority, which does not mean much given how hard it is to get to this stage to begin with.
Coming back to Hungary’s case, it is now clear that it will be engaged in a long and unpleasant review. At the end of the day, it will be extremely challenging to determine the risk of a serious breach of EU values, since this would require a majority of at least 22 EU member states. Hungary, Poland, the Czech Republic, Slovakia and Romania will not vote for any repressive action, and Italy is most likely to support Budapest as well.
All this provides a lot of food for thought. Understanding what is behind the measures that are being taken is one of the key questions. Is the failure to fully abide by democratic principles the real reason? Or maybe there are other reasons as well? The noted inability to impose any real restrictive measures against Hungary and Poland makes answering this question even more important.
The simplest way to answer this question is to have an EU-wide conversation on democracy in order to understand where standards end and breaches begin and work out the principles for regulating relations between EU member states and bureaucratic institutions. Europe desperately needs a single platform for reaching common ground on these questions and for moving on.
The Hungarian case will also create a precedent and a culture empowering community institutions to interfere in the domestic affairs of its member states. The European bureaucracy has the mandate to regulate economic activity, and the European Commission is very active in this alongside its numerous regulators. But there is no mandate of this kind for political matters. Elections held recently in a number of European countries showed that sometimes interfering in internal affairs may be a necessity, for example, when there is a threat of politicians from the extreme right coming to power. In this case, it is not a question of the European bureaucracy refusing to recognize the popular vote, but the fact that the vote is not viewed as the only criteria for determining whether the country meets European standards. After all, there are many countries around the world with free democratic elections, but not all of them can aspire to join the European Union.
Article 7 was also triggered because of its inconsistency. The process unfolding around Poland and Hungary is a test for the European system that it will inevitably fail. This means that reforms will be needed to resolve all questions related to enforcing Europe-wide discipline, and ensuring more flexibility and mobility in imposing sanctions within the EU.