"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón y Miguel Azpitarte ed.)"
"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón y Miguel Azpitarte ed.)"
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Although the functioning of the European Union, its structure and its relationship with its Member States are the subject of endless debate, it is hardly disputable that this form of integration was designed for European democracies in order to provide an institutional framework for their economic and political cooperation. Respect for the rule of law is an essential condition for this cooperation[01]. This requirement is also enshrined in the preamble[02] and Article 2[03] of the Treaty on the European Uinon, as well as in the articles laying down the working rules[04] of the EU. The rule of law is an important principle of EU law, part of primary law[05]. As all Member States undertook to implement the EU law (and the so-called Copenhagen criteria established in 1993 expressly set out the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities as preconditions of the accession), there can be no question that respect for the rule of law is a fundamental obligation of all Member States under the TEU.
But democracy and the rule of law are not only important principles of the European legal area, they are also core values of the EU as a political community. Both the admission of the Southern European countries to the European Community after the fall of their dictatorships and the accession of the Central and Eastern European states after the collapse of communism were also motivated by the stabilisation of the emerging democratic political systems, not just by the construction of a more unified European economic area.
This European ‘project’ was successful as long as no rule of law problems have arisen until 2000, when the entry of the far-right Freedom Party into the governing coalition in Austria raised serious concerns about the maintenance of democracy in this member country, but the only consequence was that the other Member States reduced official relations with the Austrian government to a minimum for a few months. The populist governments in Hungary from 2010 and in Poland from 2015 has addressed a much greater challenge to the rule of law and the EU’s commitment to this basic value.
This study analyses the situation of the rule of law in Hungary and assesses how the European Union’s rule of law protection mechanisms have performed so far in this Member State. For this purpose, Part 1 shortly describes the major elements of the decline of the rule of law in Hungary. Part 2 examines the impacts of certain protective mechanisms of the EU in Hungary and the reasons for their achievements. I will argue that the results have been disappointing, making only a few insignificant changes, but fundamentally have failed to remedy the rule of law violations. Finally, the last Part seeks to shed light on the disadvantages or even structural flaws of the EU’s current systems to defence this basic value of the Community that explain this failure.
In Hungary, the 2010 parliamentary elections marked a turning point in the country’s recent constitutional and political development, as the former conservative, now nationalist-populist[06] opposition party Fidesz, and its satellite party, the Christian Democratic Party (KDNP) have won a two-thirds majority, and they repeated this electoral success three times in a row (in 2014, 2018 and 2022). This has meant a constitution-making majority since 2010, with one brief interruption. As a matter of fact, this supermajority has given a constitutional omnipotence to the populists who have unscrupulously exploited this opportunity: they amended the old constitution twelve times within one and a half year after they had come to power, then adopted a new constitution (Fundamental Law) in 2011 only by the votes of the government party MPs, they have modified it no less than eleven times so far, and have renewed the whole legal system without consulting the opposition parties.
Some scholars think that one of the main characteristics of modern nationalist populists, such as the Fidesz-KDNP coalition, is their ambition for using constitutional means to consolidate and extend their power[07]. According to this view, they have a specific constitutional politics, which can best be described as a new populist model of constitutionalism. Although I do not believe that modern populism has created a new variety of constitutionalism[08], it is an undeniable fact that populists in Hungary have always used constitutional change and law in general as an effective tool to achieve their goals.
The dismantling of the rule of law in Hungary has been a long, complex process, with many components, forms and a number of different instruments. It did not happen all at once, with some cathartic event, but gradually, through changes which, taken separately, would hardly have meant the destruction of the whole system of the rule of law, but which, in their cumulative effects, resulted in its systematic backsliding. Thus, it is not possible to describe this process in detail here. Instead, it is worthwhile identifying the most important areas and methods of the dismantling of the rule of law, presenting its most significant characteristics and areas. These are
Then, it is worth examining what kind of legal instruments have been used for making all these changes.
2.1. Breaking down institutional counterweights.
Although the system of separation of powers has been largely left unchanged by the 2011 Fundamental Law, as a result of the relevant parliamentary legislation and the personnel changes, after 2010, the institutional counterweights of the executive branch lost their influence on political decision-making and became unable to exercise effective control over governmental power. This is true both for political bodies and for politically neutral, controlling institutions.
The one-chamber Hungarian Parliament, the National Assembly has never had a strong policy-making role since the democratic transition, but since 2010, it has lost all its influence over the government. In the legislative process, due to special procedural rules some of which are unusual in constitutional democracies, it does not have any substantial influence on the content of laws, but in fact, it automatically adopts bills submitted by the government or pro-government deputies, while opposition-initiated proposals are usually ignored[09]. This is the only legislature in Europe which does not have the right to a second reading of the bills (i.e. may not debate the bills in details), as the Parliament can vote on the bills only en bloc.
It is also to be noted that the Fidesz government has extended the political spoils system to all leading positions of the central and regional administrative bodies, including high officials of independent regulatory agencies. These administrative bodies have given enormous help to the government in consolidating and extending its power.
However, for the development of authoritarian exercise of public power, the capture of countervailing institutions, whose constitutional function is to counterbalance the executive power, was much more important.
Just some months after the parliamentary elections in 2010, the new government majority transformed the method of nominating Constitutional Court judges, practically introducing partisan elections of the members of the Court. As a result, since 2010, the Fidesz government has been able to appoint solely its own people to the Constitutional Court. In addition, the number of constitutional judges was increased from eleven to fifteen. In this way, the Court was successfully packed by the government. Beyond this, the powers of the Constitutional Court were reduced and its basic function was transformed. Thus, public finance legislation has been exempted from constitutional review, while, introducing the German-style constitutional complaint, the Court has moved from being a counterweight to the legislature to a controlling institution of judicial power[10]. In this way, the Hungarian Constitutional Court, which once was one of the most activist courts in Europe[11] has become a servant of the government’s political interests, whose main activity is to provide constitutional legitimacy for government decisions[12].
Judicial independence has been under constant political attack since 2010. The successive legislative measures aimed at achieving personal changes in the judicial corps, as well as establishing a much more centralized system of judicial administration. For this reason, the Supreme Court was renamed ‘Kúria’ in 2011, and this change was used to terminate prematurely the mandate of the incumbent President of the Supreme Court, who had opposed the judicial reform of the government. In 2012, a new law reduced the compulsory retirement age of judges from 70 to 62, enforcing 274 judges, almost ten percent of all serving judges to retire within a year. Although both legislative acts were declared contrary to European Union law by the European courts[13], neither the former president of the Supreme Court, nor the removed judges have regained their positions. The composition of the Kúria has been changed in some other ways too. For example, an act of Parliament provided that constitutional judges, whose terms of office have expired must be appointed judges of the Kúria at their request. Under this Act, the President of the Republic appointed eight constitutional judges as judges in the summer of 2019 and one of them, András Varga Zs., who has never been a judge before, was elected by the National Assembly the President of the Kúria in the autumn of 2020. In 2012, the central administration of judiciary was transformed, with all relevant administrative powers being transferred to the President of the National Office for the Judiciary (NOJ), who was elected from among the judges by the National Assembly for nine years. The arbitrary leadership of the President of NOJ has led to a number of conflicts within the judicial corps and controversial appointments of judges.
As to the other controlling institutions, the governing parties, exploiting their overwhelming parliamentary majority, have been able to gradually replace the former high officials with their confidants. Thus, the Prosecutor-General, the Commissioner for Fundamental Rights, the Chairman of the State Audit Office, the President of the National Bank, all or most members of the National Election Commission, the Media Council, have all been elected for years. As a result, the government has successfully neutralized every counterweight to the executive power, although the principle of separation of powers was explicitly incorporated in the constitutional text. Overall, state capture, i.e. the filling of leading positions in state institutions with people politically loyal to the government, is a central feature of the dismantling of the rule of law. Experience shows that institutions thus captured become servants of government interests, rather than counterbalancing the executive or exercising professional oversight over various state activities, which is their original constitutional function.
2.2. Restricting fundamental rights.
One of the main features of authoritarian systems is that they restrict fundamental rights in accordance with their power interests. In an EU Member State, of course, it seems inconceivable to restrict fundamental rights as harshly as in open dictatorships. However, since 2010 the situation of human rights in Hungary has deteriorated, and the human rights legislation in this period has brought about significant backsliding in the level of protection of fundamental rights.
These restrictions covered personal freedoms, political liberties and economic, social and cultural rights. For instance, the discriminatory definition of the family and marriage restricts the right to privacy, because in this way, the State intervenes in the value choices of citizens. The Fundamental Law defines, for instance, marriage “as the union of a man and a woman established by voluntary decision”, while “family ties” are “based on marriage or the relationship between parents and children”[14]. While the constitutionalization of the classical form of marriage expressis verbis excludes same-sex marriage, and thus makes a difference on account of sexual orientation, the definition of the family allows discrimination on the basis of the private way of life, as the preferred family model is not only constitutionally protected, as opposed to other forms of relationships, but must be expressly favoured by the State[15]. This restrictive policy was continued by the so-called Child Protection Act, which contains openly homophobic provisions under the pretext of paedophilia, classifying as LGBTQ propaganda any sex education for minors that mentions homosexuality. Negative campaigning, and direct and indirect discrimination against Roma, immigrants, LGBTQ communities or certain religious ‘sects’ suggesting that they do not belong to the ‘people’ or they endanger Hungarian culture and identity, are also frequent phenomena[16].
The right to property and some related rights have also been badly restricted. In 2011, the State nationalised the private pension fund savings without any compensation. Until that time, these private pension funds had about three million members, and collected almost three trillion HUF (about 10 per cent of the Hungarian GDP)[17]. Although the confiscation of these private savings was apparently unconstitutional, the 2011 Fundamental Law, has suspended constitutional review of public finance legislation, unless the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and rights related to Hungarian citizenship are violated by such laws[18], as long as state debt exceeds one half of GDP. However, since this ratio has been significantly over 50% (about 80% in 2023), this jurisdictional limitation is expected to prevail for a long time.
In 2011, a new legislation deprived more than 300 former churches of their church status, and imposed new requirements for their recognition as churches. This legal re-registration was conditional on prior approval by the legislature by a two-thirds majority vote, although an exception was granted to ‘historic churches’ and some other religious associations. The categorisation of religious communities in itself means a violation of freedom of religion, which has made manifest when the government has denied church status, for apparently political reasons, to a religious community whose leader has repeatedly criticised the government policy[19].
The level of the freedom of the press has also badly deteriorated since 2010, although it is true that it has been restricted in an indirect way (making the public media the propaganda machinery of the government parties) and by market tools, rather than legal instruments. The main trend has been the acquisition of a significant part of the media market by businessmen who are allegedly closely associated with government parties. In this way, several opposition media outlets have been silenced or taken over by government-friendly businessmen[20].
After 2010 the right of association was also restricted in several respects. In 2014, for instance, the government launched a political smear campaign and took administrative measures against some NGOs sponsored by international funds, the EEA Grants and Norway Grants. The government accused the aid mechanism of indirectly supporting one of the opposition parties and asked the donor countries to let the Hungarian government to decide on the distribution of all funds. The conflict lasted for years, and several criminal and administrative investigations were launched against the NGOs that received aid. Then, Parliament adopted a legislative package, which was inspired by the heavy anti-migrant and Eurosceptic campaign of the government, consisted of three laws, on the basis of the government’s accusations that the NGOs support illegal immigration. One of them was adopted by Parliament in 2017[21], which required all associations and foundations that receive funding from foreign sources (individuals, foundations, governments or agencies) above a certain amount in a tax year to notify the court in order to be registered as an ‘organization supported from abroad’.
Among cultural rights, academic freedom has been mostly exposed to challenges since 2010. One of the most famous examples of this was the expulsion of the American-founded Central European University from Hungary. In 2017, the Parliament created a legal environment that made the situation of this university impossible. The law was passed specifically against CEU for political reasons: the university was founded and sponsored by George Soros, an American billionaire of Hungarian origin who was outcried public enemy by the government[22]. Beyond this stigmatization, the Penal Code was amended in 2018 introducing a new type of crime called ‘facilitation and support of illegal immigration’. From 2019, the Government has transformed several public universities into quasi-private entities, placing them under the management of so-called public interest foundations. These transformations have been heavily criticized because while the central government has lost control over the universities that were transferred, leading politicians of the government parties and people loyal to them were appointed to the boards of trustees of the new foundations[23].
2.3. Limiting political contest and market economy.
Based on the experience of the last three parliamentary elections, it seems reasonable to assume that the current coalition government cannot be replaced by general elections. One reason for this is undoubtedly the popularity of the populist policies of the Fidesz-Christian Democratic coalition, but the appeal to electoral support is not convincing, as the 2014, 2018 and 2022 elections can hardly be considered fair[24], for several reasons.
On the one hand, the election rules have been rewritten a number of times since 2010, always in the interest of the governing parties which have always unscrupulously exploited their two-thirds parliamentary majority necessary for amending these rules. The voting system includes discriminatory rules as far as Hungarian citizens who live beyond the borders may cast their votes by correspondence, the law excludes the same way of voting for those who are abroad on the day of the general election, but live in Hungary anyway. The background reason for this kind of differentiation is that the vast majority of Hungarians living beyond the state borders support the governing parties, while those who work abroad are presumably less enthusiastic about government policies. The boundaries of the constituencies were redrawn by the government majority in a way that the new constituency map strongly favours the governing parties.
On several occasions, the State Audit Office (SAO) of Hungary has played a significant political role by using its powers to audit the legality of party finances to deprive opposition parties of their financial resources by imposing heavy fines on spurious grounds. This is possible not only because the consecutive SAO’s chairmen have been chosen by Fidesz, but also because there is no legal recourse against the decisions of this body.
The National Election Commission has followed a practice beneficial for the government parties. According to its practice, for example, the so-called ‘public information campaigns of general interest’ issued by the government are not subject to restrictions on political advertising, which has been an enormous advantage for the governing parties in the last three general elections. In this way, as the government can make unlimited use of public resources to promote its own political messages, there is a huge difference in the financial resources available to the government side and opposition parties during election campaigns. It has also meant a serious harm to equal opportunity in that public media have been tools of government propaganda, public advertisements have been distributed on a party-political basis among the various media platforms, and a large part of the written and electronic media came into the hands of businessmen close to the government which also support the government parties. Yet, the National Media and Infocommunications Authority has never objected this situation, nor the concentrate of the pro-government media outlets under unified control[25].
Despite the fact that, unlike the previous constitution, the 2011 Fundamental Law has a separate chapter on public finance, with several provisions on the protection of national wealth and the reduction of public debt, the rule of law has been seriously compromised in the area of so-called economic constitutionalism. From the beginning, the conservative right-wing parties, which came to power in 2010, had the goal of state ownership of companies deemed to be of strategic importance, or at least 50% national (i.e. Hungarian) ownership. Another fundamental ideological goal was to create a ‘national capitalist class’, even at the cost of squeezing out foreign ownership. There were several ways to achieve these goals. One of them was the imposition of so-called ‘crisis taxes’ from 2011, at the beginning, only on the banking, telecommunications, energy and retail sectors. Although these extraordinary taxes were introduced only for a limited, three-year period, and targeted only at companies of substantial profitability, they have become standing part of the tax system, and the tax base has not been the net profit of the concerned companies, but their turnover from taxable activities. The crisis taxes have been proved effective weapon in the hands of the government to restructure the market in several economic areas in favour of some selected national companies and oligarchs.
Perhaps the most effective tool of arbitrary economic governance is that the government can declare any investment to be of ‘high national economic importance’, which means that such an economic activity is exempt from a number of legal requirements and obligations. This gives a huge competitive advantage in the economy to businessmen close to the government. They are supported by the government through both legislative and administrative means. One of the most typical techniques used in recent years has been to nationalise certain companies or activities and then re-privatise or concession them to selected, political allies, such as in the tobacco retailing or waste management sectors.
All this has led to systemic corruption: the richest man in the country is now a childhood friend of Prime Minister Viktor Orbán, a former plumber, as the PM’s own family and circle of friends have become billionaires, as many politicians in the ruling party. This has been made possible mainly by EU subsidies, which are distributed under national jurisdiction, with the system of ‘managed public procurement system’ becoming a common tool.
2.4. A toolbox for destroying the rule of law.
Apart from the main areas of institutional and policy changes, the legal methods also deserve attention. At most general level, the instrumentalisation of law has always been and is still the most common method. According to this approach, the major function of law is to realise political will and to preserve power[26]. Besides this, in authoritarian populist systems, the formal legitimization of political decisions and the maintenance of the appearance of democracy and the rule of law are also important functions of the legal system[27].
The fact that the 2011 Fundamental Law was approved exclusively by the MPs of Government majority, was indicative for the future, as far as it demonstrated that the new government coalition does not need the cooperation of the parliamentary opposition, nor does require it. In any case, together with the fact that the governing coalition has infused the constitution with its own right-wing conservative ideological values, the Fundamental Law was from the outset inadequate to provide a common foundation in the already highly polarised Hungarian domestic politics. Although the Fundamental Law has not brought about significant changes in the institutional system of public power, some changes foreshadowed a new era in constitutional and political terms. For example, the constitutional text on fundamental rights is entitled “Freedom and responsibility”, as if human rights would be linked to the duties of citizenship.
The amendments were, in many cases, actually packages of modifications, changing various parts of the Constitution, among which there were no logical connections. These changes did not follow a coherent constitutional policy, but largely served current political needs. In fact, all the constitutional amendments were direct reactions to current political developments, which means that the constitution-making power has always been used as an effective tool to achieve political goals and as an ultimate political weapon of the government to destroy any resistance to its political stance.
Accelerated law-making has led to a situation where the National Assembly has virtually no scrutiny of the content of bills, which often passing through Parliament in two days. As a result, a whole series of so-called ‘personalised laws’ have been adopted. These statutes provide privileges, exemptions or special entitlements for certain persons (usually politicians), creating loopholes in and exceptions to the general rules. Offering special advantages, relief or rewards for selected people on a political basis, these acts offend the normative character of law. This legislative device has been used when the desired goal cannot be reached in the normal way (e.g. by an individual administrative act) but only by the intervention of Parliament. ‘Omnibus legislation’ (enacting so-called ‘salad laws’) has also become a frequently used technique of law-making. Here, a statute covers a number of diverse and unrelated legal provisions, often amending many other laws. Frequently these laws are large-size legal packages combining highly different subjects, which make the whole legislative process opaque and difficult.
The government’s powers have now been formally unlimited by the state of emergency that has been in effect since 2020. Due to the Covid-19 pandemic, a special legal order (a so-called ‘state of danger’) was first introduced in March 2020 and extended twice more. When the pandemic situation no longer justified the maintenance of exceptional powers, the government majority, through a constitutional amendment extended the possibility of declaring a state of danger to the “armed conflict, state of war or humanitarian situation in a neighbouring country”[28].
The government has taken advantage of all five consecutive emergency situations; it has achieved an intense law-making activity. So far, based on the exceptional power, the government has issued more than 800 emergency decrees. The government exploited its constitutional omnipotence for political ends that were not in any connection with the crisis situations. Thus for example, it placed under state supervision and took over the management of private companies qualified to be of strategic importance for national economy, reduced state support for political parties, or sought to break the teachers’ protest movement by severely restricting their right to strike. However, the peak of the government by decree was when the country’s annual budget was also set by an emergency decree.
2.5. Assessing and measuring the rule of law violations.
International research also shows the decline of democracy and the rule of law in Hungary. According to Freedom House’s assessment, for example, Hungary is only considered a ‘partly free’ country, even though it was one of the free states a few years ago[29]. Similarly, the state of the rule of law shows a negative value (and tendency); on the World Justice Project’s Rule of Law index, Hungary ranks 73 out of 140 countries[30], by far the weakest of the EU Member States. As to the freedom of the press, Hungary is 72nd (out of 180 countries) on the list of the Reporters Without Borders, which means that the press is in ‘problematic situation’ in this country[31].
The extent of corruption is a serious and persistent rule of law problem. According to independent surveys, the corruption situation in Hungary has significantly deteriorated in recent years. According to the global scores of the Corruption Perceptions Index, in 2009 Hungary was the 46th least corrupt country in the world whereas in 2022 it only ranks 77th in the same list[32]. In particular, the Prosecution Service is reluctant to take action against political corruption, often not even when the European Anti-Fraud Office (OLAF) encourages it to do so[33]. Hungary often emerges in the academic literature as an example of centralized corruption and state capture[34].
The backsliding of the rule of law in Hungary has been the focus of constitutional and political science scholarship for years. The Orbán regime is often referred to in political science works as, among others, ‘illiberal democracies’[35], ‘hybrid regimes’[36], or competitive[37] or electoral[38] authoritarianism, while other expressions such as ‘autocratisation’[39], ‘stealth authoritarianism’[40], or ‘democratic recession’[41] characterize the process rather than the substance of the whole system. Other scholars prefer to classify this legal transformation as, for example, ‘constitutional breakdown’[42], ‘autocratic legalism’[43], ‘constitutional rot’[44], ‘counter-constitutionalism’[45], or ‘abusive constitutionalism’[46].
In the recent years, the European Union has been confronted with a new phenomenon: the systemic threats to the rule of law in some Member States. Such trends were first seen in Hungary, then in Poland, and some other countries, particularly some of those that joined after 2000, have also experienced worrying phenomena. The EU has been noticeably unprepared for these events and has been very slow to react, first by using the Article 7 procedure and then by putting in place new mechanisms.
3.1. Assessing and measuring the rule of law violations.
A safeguard mechanism for the rule of law was introduced into EU law as early as 1999 with the Treaty of Amsterdam, and is now enshrined in Article 7 of the Lisbon Treaty. It was first activated against Poland in December 2017 at the initiative of the European Commission. This was surprising as far as Poland just followed the Hungarian example in many respects in dismantling the rule of law years later. It was only in September 2018 that the procedure was launched against Hungary, this time at the suggestion of the European Parliament. The EP expressed in its resolution that it found “the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded”. The resolution based on several different fact-finding missions and reports prepared by the Venice Commission, the European Parliament, the European Commission, the Organization for Security and Co-operation in Europe, the UN Human Rights Committee, as well as some judgments of the Court of Justice of the European Union and the European Court of Human Rights, specified “the main concerns related to the functioning of the constitutional and electoral system, the independence of the judiciary and of other institutions, the rights of judges, corruption and conflicts of interest, privacy and data protection, freedom of expression, academic freedom, freedom of religion, freedom of association, the right to equal treatment, the rights of persons belonging to minorities, including Roma and Jews, and protection against hateful statements against such minorities, the fundamental rights of migrants, asylum seekers and refugees, and economic and social rights”[47].
After the initiation of the procedure, the European Commission, as in other cases, initiated political negotiations, and several exchanges of letters took place with the Hungarian government. However, these did not lead to any results; according to the Orbán government’s argument and communication, ‘Brussels’ is attacking Hungary because this country opposes migration and the EU’s inclusive policy in the area of refugee and immigration affairs. However, the consultation has dragged on without any real change so far, and there is no sign that this will change in the future.
3.2. The Rule of Law Framework.
In recent years, The Commission reacted by adopting the Rule of Law Framework to address such threats in some EU countries. The objective of this mechanism is to prevent the decline of the rule of law in the Member States to a point where the European Commission should trigger the Article 7 of the TEU procedure.
This framework consists of a three-stage process which begins with the assessment of the state of the rule of law in the member countries by the European Commission. When necessary, the Commission makes recommendations how to correct the anomalies identified, and, finally, it monitors the follow-up to the recommendations.
The Rule of Law Framework is even more political in nature than the Article 7 procedure: it is essentially based on dialogue and political consultation between the European Commission and the Member States in order to avoid the aforementioned procedure.
For this purpose, the Commission produces and publishes an annual report on the rule of law for each Member State. The national reports cover four areas of the rule of law: the justice system, the anti-corruption framework, media pluralism, and other institutional issues related to checks and balances. National parliaments and other national authorities are invited to discuss the report. Four such reports have been produced so far (this mechanism has been working since 2020) for Hungary (and for each other Member State). All of them have made a number of criticisms on the Hungarian situation of the rule of law. In each case, however, the Hungarian government has rejected them, and in fact, the report is used by government propaganda to campaign against the EU, echoing the government’s communication that the European Union is attacking Hungary because it is sovereign in its own affairs and does not accept the dictates of EU institutions.
3.3. The Conditionality Procedure.
Conditionality regime allows the European Union to take measures – for example suspension of payments – to protect the integrity of the EU budget. This mechanism empowers the European Commission to set out guidelines on appropriate and proportionate measures to the Council in case rule of law breaches in a given Member State threaten the EU financial interests.
Hungary has been the first and single EU Member State for which this mechanism, established in 2020, has been triggered. In December 2022, the Council froze 45% of the Recovery Fund’s allocation to Hungary and payments from the Cohesion Fund until the country meets the conditions set by the European Commission, the 27 so-called ‘super milestones’. These conditions require effective anti-corruption measures and certain reforms reinforcing judicial independence in order to prevent and correct the illegal practices and irregularities in spending the EU payments[48].
It should be noted, however, that the conditionality procedure has not produced any significant results so far. State capture, the distribution of EU funds through corrupt channels, and political control of independent, controlling institutions are so fundamental parts of the policy of the Orbán regime that it is very difficult to imagine that the government would be willing to make real changes on these areas. A kind of deadlock has developed in which the Hungarian government is using its own budgetary resources to advance the financial support it expects from the EU, while attributing the postponement of many necessary reforms (such as the long-overdue pay rise for teachers) to the punishment imposed by the EU.
Although there have been some legislative reforms to strengthen judicial independence and curb corruption, these have been rather sham measures that have not made any real difference so far in restoring the rule of law. The Hungarian government has already committed to several deadlines for meeting the conditions, but the European Commission has not accepted their implementation; negotiations have been in deadlock for a long time, while Hungary seeks to meet its capital needs from other countries, mainly in Asia.
Overall, the EU’s mechanisms for the protection of the rule of law have so far not brought any substantive change in Hungary. The rule of law has not been restored, and its dismantling has continued essentially unabated over the past few years. As expressed in a recent resolution of the European Parliament, the situation of the rule of law has continued to deteriorate since the activation of these mechanisms. The question therefore arises as to why the procedures developed and put in place by the EU, partly in response to developments in Hungary, are not effective in this country.
I believe that there are several reasons for this, some of which relate to specific procedures while others have a general nature.
As to the Article 7 procedure (which is, in fact, formally two successive procedures), the reason for its failure is, on the one hand, that the possible sanction (suspension of the voting rights of the Member State concerned) is too severe (that’s why it is called also as ‘nuclear option’). On the other hand, procedural weaknesses prevent effective action: there are no deadlines and no precise timetable for the particular steps. And the requirement of unanimity makes success completely hopeless: the two Member States concerned, Hungary and Poland, for example, have openly undertaken to veto any decision condemning the other.
The Rule of Law Framework aims by definition only at assessing the national situations and making recommendations, based on a dialogue between the EU and the Member State concerned. This process can only be effective between cooperating parties, but Hungary is hostile to the EU’s supranational institutions: it sees the rule of law mechanisms as politically motivated attacks against the country and in response seeks to obstruct the implementation of many of the EU’s common policies.
The Conditionality Procedure seems to be by far the most effective, as sanctions are immediate and severe for Member States. At the same time, it has certain risks, because it is a way of stirring up resentment against the EU. In Hungary, for example, there is increasing talk of Huxit, the country’s possible exit from the European Union. Although support for EU membership is very high among the Hungarian population, the persistent and fierce anti-EU campaign could jeopardise this in the longer term. For the government, which has for years treated the EU as an enemy, the main reason for maintaining membership is EU subsidies. If these payments are not coming, or if the government does not have access to them, the whole EU membership could easily be called into question.
Notwithstanding, the failure of the EU procedures for protecting the rule of law has probably more general reasons as well.
First, the rule of law clause of Article 2 of TEU is doctrinally undeveloped in EU law, and the legal basis of the individual procedures is not sufficiently clear, so the Member States concerned will probably always dispute its legality and thus the specific recommendations will not be considered binding rules.
Beyond this, the concept of the rule of law in these mechanisms is very limited and narrowly tailored: it only applies to the correct way to use EU funds, even if it is understood broadly (for example, requiring judicial independence to ensure a fair resolution of disputes). Its fundamental objective is to protect the EU budget, not to guarantee the rule of law in the domestic legal order of the Member States.
As far as the particular recommendations and conditions are concerned, they require mostly only formal changes, i.e. they expect institutional-procedural reforms, but are not aimed at resolving or remedying an existing maladministration. It is therefore easy to evade them by offering formal solutions that do not bring about any real change. For example, in Hungary, as results of the Conditionality Procedure, some new institutions (e.g. the Integrity Authority) have been established and the powers of some existing bodies have been modified (such as strengthening the National Council of Judges, the self-governing body of judges). However, if the government is able to place their people in these bodies, or to control the operation of these public authorities (as the Hungarian government does), these only create the appearance of change, without any real effect.
Then, the requirements of the rule of law are demanded by the relevant EU mechanisms only for the future, and, in doing so, they actually conserve the power relations already established. In this way, the incorrect and unfair developments and gains of the past are not remedied, but preserved, and the illegitimate advantages will prevail ‒ now under fair conditions. This is well illustrated by the above-mentioned case of the incumbent President of the Kúria, whose election is hardly compatible with the requirements of the rule of law, and who, after a proper judicial reform, would obviously not be elected. But he will continue to play a decisive role in the functioning of the supreme court for years to come, which could ensure the Fidesz government’s lasting influence on the judiciary.
Nevertheless, the most fundamental mistake of the EU actions and procedures for the protection of the rule of law is that they are very late; the power machinery of the Fidesz government is now fully established, from public media to strategic areas of the economy, from judiciary to cultural life, almost all leading positions and resources are owned by the governing parties.
The paradox of the situation is that the new authoritarianism in Hungary was largely financed by the EU for more than a decade, therefore it has a partial responsibility for this process, even if this was obviously unintended. For many years, the European institutions, as well as the EU Member States ignored the systematic dismantling of the rule of law in Hungary, and when this process detected, it was mistreated, considering the autocratic changes as only rule of law deficits, not as an authoritarian transition. Therefore, one can only hope that the institutions of the European Union will be able to give real substance to Article 2 of the TEU and draw lessons for the future by figuring out how to prevent other Member States from turning in the same authoritarian direction as Hungary.
Resumen: Este estudio analiza la situación del Estado de Derecho en Hungría y evalúa cómo han funcionado hasta ahora los mecanismos de protección del Estado de Derecho de la Unión Europea en este Estado miembro. Para ello, la Parte 1 describe brevemente los principales elementos del declive del Estado de Derecho en Hungría. La Parte 2 examina los efectos de determinados mecanismos de protección de la UE en Hungría y las razones de sus logros. Argumentaré que los resultados han sido decepcionantes, ya que sólo han introducido algunos cambios insignificantes, pero fundamentalmente no han logrado remediar las violaciones del Estado de Derecho. Finalmente, la última parte trata de arrojar luz sobre las desventajas o incluso los defectos estructurales de los actuales sistemas de la UE para defender este valor básico de la Comunidad que explican este fracaso.
Palabras claves: Estado de Derecho; Unión Europea; transición autoritaria; derechos fundamentales; Hungría.
Abstract: This study analyses the situation of the rule of law in Hungary and assesses how the European Union’s rule of law protection mechanisms have performed so far in this Member State. For this purpose, Part 1 shortly describes the major elements of the decline of the rule of law in Hungary. Part 2 examines the impacts of certain protective mechanisms of the EU in Hungary and the reasons for their achievements. I will argue that the results have been disappointing, making only a few insignificant changes, but fundamentally have failed to remedy the rule of law violations. Finally, the last Part seeks to shed light on the disadvantages or even structural flaws of the EU’s current systems to defence this basic value of the Community that explain this failure.
Key words: Rule of Law; European Union; authoritarian transition; fundamental rights; Hungary.
Recibido: 2 de mayo de 2024
Aceptado: 2 de mayo de 2024
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[01] J. PINDER, The European Union: A Very Short Introduction, Oxford University Press, oxford, 2007, p. 160.
[02] [The contracting parties] “Confirming their attachment to the principles (…) of the rule of law”.
[03] “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
[04] See especially TEU Arts 21(1), 21(2b).
[05] A. ROSAS and L. ARMATI, EU Constitutional Law: An Introduction, Hart, Oxford, 2018, pp. 44-45.
[06] There is a broad consensus in political science literature that the Fidesz-KDNP coalition represents a right-wing nationalist-populist policy. See e.g. E. PALONEN, «Performing the Nation: the Janus-faced populist foundations of illiberalism in Hungary», in Journal of Contemporary European Studies, núm. 26, 2018, pp. 308-321; S. SUTEU, «The Populist Turn in Central and Eastern Europe: Is Deliberative Democracy Part of the Solution?», in European Constitutional Law Review, núm. 15, 2019, pp. 488-518; C. MUDDEAND CRISTÓBAL ROVIRA KALTWASSER, Populism: A Very Short Introduction, Oxford University Press, Oxford, 2017, p. 55; R. EATWELL and M. GOODWIN, National Populism: The Revolt Against Liberal Democracy, Penguin Books, London, 2018, xxv, xxviii; S. KIM, Discourse, Hegemony, and Populism in the Visegrád Four, Routledge, London, 2022, pp. 134-142.
[07] P. BLOKKER, «Populism as a constitutional project», in International Journal of Constitutional Law, núm. 17, 2019, pp. 536-553.
[08] Z. SZENTE, «The Myth of Populist Constitutionalism in Hungary and Poland: Populist or Authoritarian Constitutionalism?», in International Journal of Constitutional Law, núm. 21, 2023, pp. 127-155.
[09] See in details S. ZOLTÁN, «The Twilight of Parliament ‒ Parliamentary Law and Practice in Hungary in Populist Times», in International Journal of Parliamentary Studies, núm. 1, 2021, pp. 127-145.
[10] F. GÁRDOS-OROSZ, «The Hungarian constitutional court in transition - from actio popularis to constitutional complaint», in Acta Juridica Hungarica, núm. 53, 2012, pp. 302-315.
[11] G. HALMAI, «The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court», in W. SADURSKI (ed.), Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, Kluwer Law International, Alphen aan den Rijn, 2002, pp. 189-211; H. SCHWARTZ, The Struggle for Constitutional Justice in Post-Communist Europe, The University of Chicago Press, Chicago, 2000, pp. 87-108.
[12] Z. SZENTE and F. GÁRDOS-OROSZ, «Judicial deference or political loyalty? The Hungarian Constitutional Court’s role in tackling crisis situations», in Z. SZENTE and F. GÁRDOS-OROSZ (eds.), New Challenges to Constitutional Adjudication in Europe: A Comparative Perspective, Routledge, 2018, pp. 89-110; N. CHRONOWSKI, «The Post-2010 ‘Democratic Rule of Law’ Practice of the Hungarian Constitutional Court under a Rule by Law Governance», in Acta Juridica Hungarica - Hungarian Journal of Legal Studies, núm. 61, 2020, pp. 136-158; N. CHRONOWSKI, Á. KOVÁCS, Z. KÖRTVÉLYESI and G. MÉSZÁROS, «The Hungarian Constitutional Court and the Abusive Constitutionalism», in MTA Law Working Papers, núm. 7, 2022, pp. 1-41.
[13] See ECHR Case of Baka v Hungary, Application no. 20261/12 (2014), and Case C-286/12, Judgment of the European Court of Justice, 6 November 2012, respectively.
[14] Article L Section (1) of the Fundamental Law.
[15] A. LÁSZLÓ PAP, Democratic decline in Hungary: law and society in an illiberal democracy, Routledge, London, 2018, pp. 73-79.
[16] T. DRINÓCZI and A. BIEŃ-KACAŁA (eds.), Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law, Routledge, London, 2021, pp. 134-135.
[17] Z. Szente, «Breaking and Making Constitutional Rules: The Constitutional Effects of Financial Crisis in Hungary», in X. Contiades (ed.), Constitution in the Global Financial Crisis: A Comparative Analysis, Ashgate, 2013, pp. 255-256.
[18] This limitation of constitutional review was firstly introduced by an amendment of the former Constitution in 2010 by Act CXIX of 2010.
[19] ECHR Case of Magyar Keresztény Mennonita Egyház and Others v Hungary, Application nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12 (2014).
[20] G. Polyák, «Media in Hungary: Three Pillars of an Illiberal Democracy», in E. POŁOŃSKA and C. BECKETT (eds.), Public Service Broadcasting and Media Systems in Troubled European Democracies, Palgrave Macmillan, 2019, pp. 279-303.
[21] Act LXXVI of 2017.
[22] For more details see P. BÁRD, «The rule of law and academic freedom or the lack of it in Hungary», in European Political Science, núm. 19, 2020, pp. 87-96.
[23] Acts VIII and IX of 2021.
[24] See the assessments of the OSCE’s (Organization for Security and Co-operation) reports ont he Hungarian general elections: Hungary. Parliamentary elections 6 April 2014 OSCE/ODIHR Limited Election Observation Mission Final Report, OSCE Office for Democratic Institutions and Human Rights, Warszaw, 11 July 2014; Hungary. Parliamentary elections 8 April 2018 OSCE/ODIHR Limited Election Observation Mission Final Report, OSCE Office for Democratic Institutions and Human Rights, Warszaw, 27 June 2018; Hungary. Parliamentary elections and referendum 3 April 2022 OSCE/ODIHR Election Observation Mission Final Report, Warszaw, 29 July 2022.
[25] In 2018, more than 400 media outlets founded or owned by businessmen close to the government were transferred free of charge to the Central European Press and Media Foundation, which brought together pro-government media under a uniform control.
[26] D. LANDAU, «Populist Constitutions» (2018) 85 in The University of Chicago Law Review 532; Jan-Werner Müller, What Is Populism?, University of Pennsylvania Press, Pennsylvania, 2016, 91.
[27] G. ATTILA TÓTH, «Constitutional Markers of Authoritarianism», in The Hague Journal on the Rule of Law, núm. 11, 2019, pp. 37-61.
[28] Eleventh Amendment to the Fundamental Law of Hungary (24 May 2022).
[29] https://freedomhouse.org/countries/freedom-world/scores.
[30] https://worldjusticeproject.org/rule-of-law-index/global/2022.
[31] https://rsf.org/en/index.
[32] https://www.transparency.org/en/cpi/2022.
[33] In the best-known case, the Elios case, the Prime Minister’s son-in-law was also involved in a street lighting scandal.
[34] See, e.g., M. FAZEKAS and I. JÁNOS TÓTH, «From Corruption to State Capture: A New Analytical Framework with Empirical Applications from Hungary», in Political Research Quarterly, núm. 69, 2016, pp. 320–334.
[35] A. LÁSZLÓ PAP and A. ŚLEDZIŃSKA-SIMON, «The Rise of Illiberal Democracy and the Remedies of Multi-Level Constitutionalism», in Hungarian Journal of Legal Studies, núm. 60, 2019, pp. 65-85; T. DRINÓCZI and A. BIEŃ-KACAŁA, «Illiberal Constitutionalism: The Case of Hungary and Poland», in German Law Journal, núm. 20, 2019, pp. 1140-1166; V. HAVLIK and V. HLOUŠEK, «Differential Illiberalism: Classifying Illiberal Trends in Central European Party Politics», in L. H. ANDERS and A. LORENZ eds., Illiberal Trends and Anti-EU Politics in East Central Europe, Springer, 2021, pp. 111-136.
[36] M. BOGAARDS, «How to classify hybrid regimes? Defective democracy and electoral authoritarianism», in Democratization, núm. 16, 2009, pp. 399-423.
[37] S. LEVITSKY & L. A. WAY, Competitive Authoritarianism: Hybrid Regimes After the Cold War, Cambridge University Press, Cambridge, 2010, pp. 78-81.
[38] A. SCHEDLER, The Politics of Uncertainty Sustaining and Subverting Electoral Authoritarianism, Oxford University Press, Oxford, 2013.
[39] L. TOMINI and S. GÜRKHAN, «Contesting the EU, Contesting Democracy and Rule of Law in Europe. Conceptual Suggestions for Future Research», in L. H. ANDERS and A. LORENZ (eds.), Illiberal Trends and Anti-EU Politics in East Central Europe, Springer, Berlin, 2021, pp. 285-299.
[40] O. O. VAROL, «Stealth Authoritarianism», in Iowa Law Review, núm. 100, 2015, pp. 1673-1742.
[41] L. DIAMOND, «Facing up to the Democratic Recession», in Journal of Democracy, núm. 26, 2015, p. 142.
[42] W. SADURSKI, Poland’s Constitutional Breakdown, Oxford University Press, Oxford, 2019.
[43] K. L. SCHEPPELE, «Autocratic Legalism», in The University of Chicago Law Review, núm. 85, 2018, pp. 545-583.
[44] J. BALKIN, «Constitutional Crisis and Constitutional Rot», in M. A. GRABER, S. LEVINSON and M. Tushnet (eds.), Constitutional Democracy in Crisis?, Oxford University Press, Oxford, 2018, pp. 16-17.
[45] P. BLOKKER, «Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism», in European Constitutional Law Review, núm. 15, 2019, pp. 519-543.
[46] D. LANDAU, «Abusive Constitutionalism», in UC Davis Law Review, núm. 47, 2013, p. 213.
[47] European Parliament, P8_TA-PROV(2018)0340, The Situation in Hungary. European Parliament resolution of 12 Sept. 2018 on a proposal calling on the Council to determine, pursuant to Art. 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)).
[48] See more details: https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/741581/IPOL_BRI(2023)741581_EN.pdf.
