Dealing with the Corona crisis poses a challenge to all European democracies. There is one member state in particular, however, which raises worldwide attention: Hungary. Managing the pandemic not only increases tensions between Brussels and Budapest. The open conflict illustrates an immanent, fundamental problem of the EU. In order to avoid further ruptures it seems inevitable to include a discussion on treaty changes into the debate on the future of the EU.
As frequently discussed over the past months, the Covid-19-crisis is multifaceted. It’s a health crisis, an economic crisis, a social crisis – and also a test for European democracies. It seems to be a Herculean task to maintain the balance between quick and proportionate political response and a transparent and accountable decision-making process. All EU-Member States have implemented emergency measures (except Sweden), fourteen even declared the state of emergency to cope with the situation (euractiv.pl, Zbytniewska, 08.05.2020). But one country in particular raises EU-wide attention: Hungary. This case not only illustrates the EU’s ongoing dilemma in dealing with a Member State challenging the fundamental values and transnational cooperation in times of crisis. This contribution argues to also view the Hungarian democratic backsliding as a European issue, affecting the EU’s decision-making process systematically. Hence, as the cleavage between Member States deepens, it is necessary to leave the debate on the Future of Europe open for discussion about treaty changes.
Case in point: Hungary
Since the Fidesz-Party was elected in a landslide victory (holding a supermajority since) in 2010, its leader, Viktor Orbán, used crisis situations to shape the Hungarian political system in his favor. In the aftermath of the financial crisis in 2012, constitutional court’s jurisdiction was stripped of revising fiscal legislature, amongst other major powershifts towards the executive (Bugarić, 2013:6). Since 2016 Hungary is in a “state of crisis due to mass migration”, limiting asylum seekers’ rights and granting law enforcement authorities increased powers. This extension was prolonged for the eighth time on March 5th, even though the Hungarian borders have been de facto sealed in the past four years (kormany.hu, Hungarian Government Communication Centre, 06.03.2020).
And now there is the Covid-19-crisis. On March 30th the “Act on Protecting against the Coronavirus” was adopted by the Hungarian parliament, which enables the Hungarian government to rule by decree, without defining the legislative scope or duration of this state of emergency. The government alone decides, when the state of danger is over based on its own factual assessment. In addition, this law entails an amendment of the criminal code concerning scaremongering, stating that “during the time of the special order of law, a person who states or spreads an untrue fact or a true fact stretched in such a way as to be suitable for hindering or defeating the effectiveness of protection shall be punished with imprisonment from one to five years for felony” (boell.de, Lázár, 01.04.2020). This move falls in line with Fidesz’ ten years of reconstructing Hungary’s political system into a self-proclaimed ‘illiberal democracy’. The wide interpretative leeway of this law is especially worrisome, as the government in charge literally rejects liberal democratic values. Now, the government has announced to end the state of danger by mid-June while applying the same logic as in the crises before. The bill to end the rule by decree introduces at the same time the possibility to easier declare a state of emergency in the future (euronews.com, Palfi & Chadwick, 28.05.2020). Once more, a crisis is used as a catalyst for yet another power grab. The attacks seen before on media, civil society and opposing views in general, fueled the broad international (media) echo about this so-called ‘enabling act’.
Numerous politicians, i.e. Jean-Claude Juncker, NGOs and journalists accused Fidesz that the installation of this special legal order is not proportionate for handling the epidemic and alleging yet another power grab of the Orbán administration (transparency.eu, Corser, 15.04.2020). Even the secretary-general of the Council of Europe and the UN high commissioner for Human rights expressed their concerns (coe.int, Pejčinović Burić, 24.03.2020) (ohchr.org, Colville, 27.03.2020).
The harsh criticism and call for action illustrate the actual sincerity of the situation. Democracy-monitoring think tanks like Freedom House and the BTI-Project rated Hungary as the first EU-Member State as “partly-free” and “defective democracy” this year (freedomhouse.org, 2020) (bti-project.org, 2020). At the same time, the continuous erosion of the rule of law and fundamental rights in Hungary also points the finger at Brussels and questions its capability to deal with this situation.
One for all and all for one?
In fact, the reaction pattern of the institutional triangle seems similar to every outcry (and there have been quite a few) about Hungarian democratic backsliding. It demonstrates that the EU’s limitation to deal with this fundamental issue has almost evolved to an institutional Gordian knot, which can only be cut with a holistic approach. The European Commission (EC) is concerned, it is monitoring the situation and stays in close dialogue with the Hungarian government. Over the years, the EC tried to enlarge its legal toolkit to deal with breaches of fundamental values, especially due to the Hungarian development. Nevertheless, the guardian of the treaties can only stretch its competences ultimately to the extent of the Member States tolerating it.
The Council, the institution bundling the voices of the latter, reacted, as usual, the most hesitant. In a joint diplomatic statement, initially thirteen Member States expressed their concerns about the risks of violations of rule of law and democracy and their full support of the Commission’s monitoring measures for all EU-countries. As they did not specifically mention Hungary, the Hungarian government even co-signed this statement (Hungarian Ministry of Justice, 02.04.2020). In a nutshell, Orbán highlighted with this small gesture the Council’s dilemma. Calling out a fellow Member State on EU-level could backfire, even if mocking the fundamental principles of the Union is as blatant as in this case.
As previously, the European Parliament (EP) has been the most vocal of the three institutions about the issue. On April 17th a resolution was adopted, deeming, inter alia, Fidesz’ actions “totally incompatible with European values” (European Parliament resolution, 17.04.2020). Numerous times, the EP made it its task to highlight the decrease of Hungary’s democratic quality. Likewise, it was shown numerous times, that its ability to take action in defending European values is rather limited. The dedicated legal instrument, Art. 7 TEU, can only have full effect, if unanimously the Council decides to act on it. Infringement procedures according to Art. 258 and 260 TFEU are not entirely fit to cope with the systematic nature of the issue. Similar to Brexit, the EU did not foresee (legally) to once deal with this extent of reframing (supposedly) common values. Once more concrete action depends in final consequence on the willingness of the two other institutions. For now, this means ongoing stagnation on the matter.
What does this mean for the debate on the Future of Europe?
Hungary’s response and rhetoric to the backlash exemplifies the deeper lying nature of the dispute between the Member State and the EU. Employing an anti-EU-narrative, Brussels is presented as the enemy, undermining the country’s national sovereignty and credibility with a disinformation campaign. Complaining about a double-standard concerning the handling of the Covid-19-crisis (politico.eu, Judit Varga, 27.03.2020), the EU-institutions were accused of purposely deepening division and demonizing Hungary in the run-up of the negotiations on the Multiannual Financial Framework (kormany.hu, Ministry of Justice, 08.05.2020). Orbán’s portrayal of the EU’s response and implicitly its current state implies the crux of the matter. By far, Orbán does not seek to leave the EU, he wants to shape the Union in a way, which facilitates his exercise of power with no interference from ‘outside’. In his view, not Hungary has to change but Europe – and he is determined to pursuit his vision.
Bearing that in mind, it is important to view this case in a European context. Especially in times of crisis, when crisis management is mainly defined by an intergovernmental approach, there should be no doubt about the acting parties’ credibility. Even further, a member questions generally, and not for the first-time, transnational cooperation, shared responsibility and even the legitimacy of decisions taken by the EU-institutions – although this country fully participates in the process. Moreover, undermining the rule of law and democracy in one Member State also targets the core of European integration – the integration through law. If the existing toolkit dealing with breaches of the rule of law and fundamental rights cannot be used due to political reasons, then it is necessary to consider changing the letter of law to protect its spirit.
As the French president Marcon put it, the Conference on the Future of Europe is supposed “to propose all the changes our political project needs, with an open mind, even to amending the treaties” (elysee.fr, Emmanuel Macron, 04.03.2019). As expected, the Commission is hesitant of treaty changes and by now, the Council tries to distance itself from this idea as much as possible. Seeing the Hungarian case play out, it becomes obvious, that the balance of power within the legislative triangle has to be discussed – which ultimately implies changes of the treaties. The decisive factor will always be the Member States. The voting rules in the Council for sensitive matters has to be questioned, when tolerating the erosion of principles is the consequence of unanimous decision-making. At least, we should be able to discuss more counterbalance in the framework of institutional reforms. The protection of the EU’s foundation, its laws and values, is indeed a good reason to have “an open mind” and consider profound changes for the future of our political project.
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