21 February 2024

Autocratic (Il)legalism

It is a common myth that since the Fidesz-KDNP coalition has almost always had a two-thirds parliamentary majority since 2010, the Orbán-government could pass its illiberal legislative reforms in a legally correct manner. In reality, however, many laws that constitute the pillars of Orbán’s illiberal regime were enacted in violation of the procedural requirements of the rule of law. The European Commission’s country visit to Hungary provides an opportunity to remind the EU bodies of their responsibility to enforce all requirements of the rule of law without compromise.

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26 January 2024

Too Little, Too Late

All signs indicate that the various procedures and instruments invented and used by the European Commission to improve the situation of the rule of law in Hungary have so far not been successful. In fact, apart from a few sham measures, democracy and rule of law, in their simplest definitions (the possibility to overthrow the incumbent government through free and fair elections, and the limitation of political power by law) are in a worse situation in Hungary today than when the various mechanisms for protecting the rule of law were launched or payments were suspended. Why have the tools used by the European Union so far proven ineffective? Finding the causes of a complex phenomenon is never easy, but the experience of recent years makes it possible to identify some that can explain this failure.

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13 January 2024

Ein Blockierer als Vorsitzender

Ungarn übernimmt am 1. Juli 2024 den Vorsitz im Rat der EU. Das stößt auf Widerstand, denn zentrale Teile von Ungarns Verfassungspolitik stehen mit rechtsstaatlichen Grundsätzen nicht im Einklang. Das Land gilt in Europa als Außenseiter und Quertreiber, es betreibt eine Blockadepolitik. Zuletzt hat Ungarns Ministerpräsident auf dem Dezember-Gipfel des Europäischen Rates erneut seine Fähigkeiten als Veto-Spezialist unter Beweis gestellt. Und solch ein Land soll den Ratsvorsitz übernehmen? Rechtlich lässt sich das kaum verhindern, denn der Vorsitz ist gemäß dem Primärrecht festgelegt und kann Ungarn ohne Rechtsverstöße nicht entzogen werden. Politisch wäre ein Entzug unklug, weil Ungarn ihn zum Anlass nähme, weniger kompromissbereit zu sein.

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21 December 2023

Same, Same but Different?

The Commission’s decision to release a significant amount of EU money is a testament to some serious pitfalls in the mechanism, which governs the unblocking of frozen EU funds. To recall, Hungary’s endowments are blocked via two different channels, based on two different conditionality criteria, which have some overlapping points. Both prescribe reforms to preserve the independence of the judiciary, which according to the Commission’s justification has been successfully accomplished by Hungary.  The Commission has, however, never published a detailed plan that would attach a specific amount to be released to every sufficiently satisfied conditionality criterion. In this blog post, I showcase that the overlap between the two conditionality mechanisms and the absence of a robust ex-ante blueprint for releasing frozen funds make the unblocking process highly obscure. This lack of transparency both decreases the efficiency and robustness of conditionality, and increases the tendency for inter-institutional conflicts.

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20 December 2023

Militant Rule of Law

To protect the rule of law based legal system against abusive use of the loopholes, imperfections, contradictions of the law, to avoid legal inertia legal positivist arguments are needed to convince and mobilize the legal mind. The same applies when the blind fortune of democracy provides the opportunity to erase the legally enthroned injustice and domination of illiberal regimes. When it comes to legal enactments that serve legal cheating the rule of law must respond to systemic abuse of the law, and that requires and justifies a rule of law based exceptionalism and a systemic remedy.

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17 December 2023

The EU’s Faustian Bargain

Twelve years into the EU’s rule of law crisis, this week has demonstrated that EU leaders are still unwilling to confront their own complicity in Orbán’s rise and to do something about it. Is this sad spectacle a price worth paying in exchange for a symbolic gesture of goodwill to Ukraine? That is the wrong question to ask. The right question to ask is this: if the EU continues to treat the rule of law as a bargaining chip and to make promises it won’t keep, for how much longer will our Union remain a club worth joining?

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15 December 2023

Orbán’s Veto Play – The Subsidiarity Card

Viktor Orbán is known to use veto threats in the European Council to get his way. This time, he was keen to see that after months of tense exchanges with the Commission, Hungary gets access to EU funds that had been blocked in order to achieve compliance with the rule of law and fundamental rights conditionality. So, PM Orbán saw it fit to loudly contest Ukraine’s accession and the financial aid package of 50 billion Euros. This may be PM Orbán’s strongest veto play to date.

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13 December 2023

Taking Revenge for Dissent

Hungary’s latest judicial reform in May 2023 came in response to  EU decisions to suspend the country’s access to funds due to serious rule of law concerns. The reform aimed, among other things, to strengthen the independence of the Kúria, the Supreme Court of Hungary. Experience to date shows that while on the level of formal legal rules, some improvements towards the rule of law have been made, in actual daily practice, the opposite is happening: While steps have been taken to restore the independence of the Kúria, the Chief Justice is working on further eroding the independence of individual judges.

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12 December 2023
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Trick and Treat?

Almost a year has passed since the European Union decided to block the payment of EUR 27 billion in union funds to Hungary under several instruments. Access to the largest part of the frozen funds - altogether EUR 13 billion - depends on whether Hungary complies with its undertakings to strengthen judicial independence. The government claims to have met all four of the so-called super milestones by adopting a judicial package in May 2023 and requests access to the blocked funds under Hungary’s Recovery and Resilience Fund (RRF) and ten different operative programmes. However, upon taking a closer look at the preconditions to the payments and the nature and implementation of the proposed reforms, it becomes clear that Hungary is still playing tricks to avoid compliance.

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07 December 2023

Protecting the Fairness of European Parliament Elections via Preliminary Ruling

Supreme or constitutional courts regularly step in to protect the democratic process by deciding election disputes. It is remarkable that the Court of Justice of the European Union (CJEU) has so far barely been engaged concerning the European Parliament (EP) elections. Using Hungary as an example, I will argue in the following that the CJEU is institutionally well-positioned to help protect the integrity of the 2024 EP elections via preliminary ruling procedures. Hungarian democracy has been in decline, according to the EP, the Commission and various democracy indices. The problems include the lack of a level playing field, targeted action by authorities against opposition parties, overlaps between the activities of the government and the governing party, state funding of campaigning and party financing in general, lack of media pluralism, and the different means of voting for citizens living abroad (postal vote for some and not for others). I argue that the CJEU could and should be engaged to protect the fairness of the EP elections in Hungary.

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03 November 2023

The Right To Die Like The Trees: Standing

My name is dr. Dániel András Karsai. I am a human rights attorney. I am also terminally ill. In August 2022, I was diagnosed with ALS. ALS is a so-called motor neurone disease. ALS leads to an extremely humiliating life situation, increasingly depriving you of independence. For reasons unknown to medical science, this disease causes nerve cells that move the muscles to deteriorate, leading to muscle atrophy and ultimately complete paralysis. At the end of the disease, respiratory functions also cease, resulting in death by asphyxiation. The final stage of the disease is virtually a vegetative existence, without any possibility of conscious activity or communication. For me, this form of existence is devoid of all meaning and dignity. In this situation, I firmly believe in the arguable claim to demand the right to end my life with dignity instead of enduring meaningless suffering.

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10 July 2023
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Restoring the Rule of Law By Breaching It

The judicial reform recently passed by the Hungarian Parliament ostensibly seeks to restore the independence of the judiciary and the rule of law in Hungary. Crucially, it is also a vital step for the government to gain access to the 27 billion in frozen EU funds. While some might think that the EU’s strategy has been successful, a closer look shows that while the reform has the potential of improving judicial independence, the procedure leading to its adoption shows that there is no real commitment to restore the rule of law. In particular, throughout the law-making process the government consistently flouted the principle of legality, including the requirement of transparent, accountable, democratic and pluralistic law-making.

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23 June 2023

Can the Hungarian Council Presidency be Postponed – Legally?

By now, it is commonly agreed that Hungary is no longer a democracy. I will offer in this blogpost some legal underpinnings to the argument that occupying the Council presidency must rotate only among those states that are in compliance with Article 2 TEU values including the rule of law, those that are fully fledged representative democracies in line with Article 10 TEU, that have been in line with Article 49 TEU at the time of accession and never regressed.

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07 June 2023

An Inconvenient Constraint

On 1 July 2024, Hungary is set to take over the Presidency of the Council of Ministers. The European Parliament and the Meijers Committee issued reports questioning whether Hungary should be blocked from doing that. These proposals raise questions of political feasibility, however, especially as one may doubt if a Hungarian Council Presidency can do much practical damage to the EU. In addition, they also raise questions of legal feasibility. A logical prerequisite for preventing Hungary from holding the Presidency as long as it breaches the rule of law is that doing so is consistent with the EU’s own rule of law. I doubt it is.

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03 June 2023

Institutional Corsets and the Question of Timing

There has been a lot of noise around whether Hungary should, and legally could, be blocked from taking over the Council presidency in the second half of 2024, considering the state of the rule of law in the country. On 1 June, the European Parliament adopted a resolution, questioning Hungary’s ability to “credibly fulfill” the tasks of a Council presidency and asking the Council to “find a proper solution as soon as possible”, else Parliament could take “appropriate measures”. Such concerns are legitimate, but another question seems to be sidelined in the debate: How much practical damage can the upcoming Council presidency under Hungary actually do in the EU?

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10 May 2023
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Betrayal

Various EU bodies have started to appreciate the threat the anti-constitutional challenge poses to fundamental rights and the entire EU. The Fundamental Rights Agency (FRA), the body primarily tasked with watching over fundamental rights, chose a different path and committed to collaboration and to legitimizing an illiberal regime. As earlier contributors to FRA reports on Hungary, we felt the responsibility to call attention to this unfortunate development: The FRA recently committed to rely on reporting from two governmental-controlled institutions, the National University of Public Service and the Hungarian ombudsperson.

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04 April 2023
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Frozen

After years of inaction, the European Commission and Council jointly acted to freeze EU funds totaling more than €28.7 billion for Hungary and more than €110 billion for Poland at the end of 2022, citing rule-of-law violations. Surprisingly, the decisions were taken not just (or even primarily) using the new Conditionality Regulation designed for that purpose. Instead, they used a variety of other legal tools to which rule-of-law conditionality was attached. It remains somewhat mysterious, however, precisely which funds and what proportion of those funds have been suspended, and how those suspensions have been legally justified. This post, a shorter version of a SIEPS paper that will be published soon, describes what we know about the complex set of funding suspensions intended to make EU Member States pay for their rule-of-law violations.

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28 March 2023
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The Council’s Conditionality Decision as a Violation of Academic Freedom?

On 15 December 2022, the Council’s suspended various EU budgetary commitments towards Hungary, the first application of the so-called Rule of Law Conditionality Regulation. The measure also froze access to Erasmus+ and Horizon Europe funds for 21 Hungarian universities that remain under the management of public interest trusts, thereby effectively denying access to these funds to a large pool of scholars and students. The decision raises important questions regarding the scope of protection afforded to final beneficiaries of EU funds. We suggest that a deeper engagement with the rights and interests of final beneficiaries in the context of the Conditionality Regulation necessitates a reconceptualisation of the EU’s understanding of and responsibility for academic freedom.

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15 March 2023

Too Much for Others, too Little for Us

The draft of the European Media Freedom Act (EMFA) published last September appears to constitute, in part, an attempt to respond to the systematic erosion of media freedom in Hungary since 2010. The European Commission seems to be aware of how unsuccessful it has been in addressing the problem. Thus, even though the rule of law proceedings against Hungary found a serious violation of media freedom, the conditionality procedure and the Charter of Fundamental Rights eligibility criteria inquiry failed to address the issue. Against this backdrop, this blogpost will analyse the draft EMFA’s capacity to respond to the unique challenges posed by the Hungarian media freedom landscape.

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21 February 2023
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Ignorance and Evil

On 2 February 2023, the Hungarian Constitutional Court published its long-awaited decision on legal gender recognition. For the first time, the Constitutional Court reviewed the provisions introduced into the Act on Registry Procedure in late May 2020 requiring the registration of the sex at birth (instead of sex) and banning any modification to that registry entry. With its decision, the Constitutional Court chose to remain concordant with the perceived political expectations, blatantly served the interest of the government majority, and echoed their fixation of biologically determined sex.

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Der Brüsseler Testballon

Über das Amtsblatt der Europäischen Union vom 13. Februar 2023 eröffnete die Kommission den Blick auf eine gegen Ungarn eingereichte Klageschrift. Im Vertragsverletzungsverfahren begehrt sie die Feststellung eines Unionsrechtsverstoßes durch das vom ungarischen Parlament in 2021 verabschiedete Gesetz über ein strengeres Vorgehen gegen pädophile Straftäter und die Änderung bestimmter Gesetze zum Schutz von Kindern. Die Kommission schlägt mit der Klageschrift einen neuen Weg ein, da sie den vorgebrachten Verstoß in einem Punkt auf Art. 2 EUV als solchen, das heißt auf die isolierte Bestimmung, stützt.

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08 December 2022

The Hungary Files

The battle over the rule of law in Hungary is coming to a head. Two separate but related dossiers landed on the EU Council’s agenda on Tuesday, 6 December: firstly, whether to suspend 7.5 billion Euros in funds under the EU’s cohesion policy under the new rule of law conditionality mechanism; and secondly, whether to approve the Hungarian national recovery and resilience plan. Both files are currently stuck in a political limbo as the member states cannot agree on a common course of action, complicated by the fact that Orbán is holding his veto over Brussel’s head on an aid package for Ukraine and a global corporate tax, both of which require unanimity in the Council. Now the question is: Who will move first, Orbán or the other member states?

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06 December 2022

The Commission’s missed opportunity to reclaim competition law for the Rechtsstaat

On 30 November 2022, the European Commission took two important decisions to protect the EU budget against possible breaches of the rule of law in Hungary. First, the Commission concluded that the conditions for applying the Conditionality mechanism in Hungary remain and Hungary needs to take further and more credible action to eliminate the remaining risks for the EU budget. Second, the Commission has assessed Hungary’s Recovery and Resilience Plan and froze the disbursement of the RRF until the full and effective implementation of 27 ”super milestones” has taken place. Unfortunately, with these measures, missed opportunity to reclaim the importance of competition law in the Rechtsstaat.

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05 December 2022

Putting an End to Minority Voter Disenfranchising in Hungary

On 11 November, the European Court of Human Rights published its decision in a case initiated eight years ago, which found that the Hungarian parliamentary electoral system's regulations on the representation of national minorities in parliament violates the right to free elections (Article 3 of the 1st Protocol to the ECHR, Bakirdzi and E.C. v. Hungary). The plaintiffs claimed that the Electoral Act of 2011 was unlawful on three points: the secrecy of the vote, the real election and the preferential quota for minority representation. In its judgment, the Court found in favour of the applicants on all three points and ordered the Hungarian State to pay damages, putting an end to a decade-long violation of voting right. The following analysis is not primarily intended to provide a detailed description of the judgment itself, but to review the unlawful situation and the necessary actions resulting from the judgment.

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01 December 2022
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The Good, the Bad and the Ugly

The Commission needs to get its message out to Hungarians loud and clear that it is trying to fight corruption in Hungary so that EU money can be used to benefit the Hungarian people and not just Orbán’s circle of cronies. Hungarians would definitely appreciate that if they knew it. But the Commission’s press release today has been drowned out by Orbán’s use of state funds to flood the zone with his message that the Commission doesn’t care about the Hungarian people and is responsible for all of the economic pain they feel.

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28 November 2022
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In Hungary, the Law Changes Every Day but It Doesn’t Get Better

The EU Commission has agreed with us that the laws that we have analyzed in our series of four blogposts did not in fact constitute an effective anti-corruption plan. And the Commission has attached a €13.3 billion price tag to non-compliance. Now the Hungarian government is scrambling to unlock this cash by introducing two additional laws that attempt to address the Commission’s concerns. But these new laws repeat the errors of the prior laws. They create the appearance of an independent corruption-fighting system while digging in political allies at all of the chokepoints and tying up whistleblowers and anti-corruption fighters in red tape. The new laws do not make things better and they may even make things worse.

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18 November 2022
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Trusting Hungary with Billions of Euros

It’s crunch time for the Conditionality Regulation at the European Commission. In its College meeting on 22 November, the Commission is scheduled to discuss whether Hungary has actually made the 17 changes it proposed in order to avoid cuts to its Cohesion Funds. What the Commission chooses to do will depend on whether it believes that Hungary’s anti-corruption program will in fact allow Hungary to be entrusted with billions of Euros without having a sizeable fraction of those Euros pocketed by cronies. We believe that Hungary’s reforms are designed to be ineffective and will not even begin to halt the massive corruption that is the hallmark of Hungary’s kleptocracy.

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14 November 2022
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Are Hungary’s EU Funds Being Cut (or Not)?

The news about whether Hungary will receive EU funds (or not) these days is confusing. One day, we hear that the European Commission is proposing to lower the boom on Hungary by cutting a large chunk of its Cohesion Funds under the general EU budget. The next day, we hear that the Commission is nearing an agreement to approve Hungary’s Recovery Plan in order to greenlight the release of funds. Is the Commission using or surrendering its financial leverage to require that the Hungarian government honor the rule of law? Will the Hungarian government negotiate its way out of funding cuts by really loosening its autocratic grip on power, or would any reform be illusory?

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31 October 2022

Hungary’s Shambolic Anticorruption Proposals

The Article Useless and Maybe Unconstitutional: Hungary’s Proposed Judicial Review of the Prosecutorial Decisions by Kim Lane Scheppele, Petra Bárd and Gábor Mészáros gives a detailed account of the proposed legislation on amending the Hungarian Criminal Procedure Code. The conclusions of the article are correct and most of the criticism is accurate. Yet the article misses some real weaknesses of the Hungarian government’s proposal. This article aims to point out these weaknesses from the viewpoint of a practicing Hungarian criminal lawyer.

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26 October 2022
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Useless and Maybe Unconstitutional

In part III of our analysis of the anti-corruption framework, we will look at another aspect of the Hungarian “reforms”: a new procedure that seems to allow the general public to challenge in court the decisions of Hungarian public prosecutors to drop corruption cases. The new procedure is nearly impossible to use and adds little value to existing controls on the public prosecutor. In addition, the Hungarian Constitutional Court may declare it unconstitutional in any event.

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06 October 2022
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How NOT to Be an Independent Agency

The Hungarian government is trying to convince EU institutions that it is taking adequate steps to ensure proper spending of EU funds going forward. At the center of this effort is a new ‘Integrity Authority’. The law establishing this authority, Bill T/1260, just passed the Hungarian Parliament on 3 October 2022. We have carefully read the laws enacted so far that establish a new anti-corruption framework and can confidently say that neither the Commission nor the Council should accept what the Hungarian government is offering because the proposed changes do not begin to alter business as usual in Hungary. In this blogpost, we will analyze the ‘Integrity Authority’ which forms the centerpiece of the government’s program, showing that it is not independent from the government nor are its powers real.

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05 October 2022

Sham and Smokescreen

Since 27 April 2022, Hungary has been under the Rule of Law conditionality mechanism, introduced by the Conditionality Regulation. After various debates and considerations, and in the light of the blackmailing potential of the Hungarian prime minister, the Regulation, in a weaker form than initially proposed, works as a preventive tool for ensuring the protection of the EU budget and sound financial management of EU resources. The Hungarian government has a record of misleading (and betraying) the European Union, and apparently, it is not different now.

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27 September 2022

Defective Judicial Appointments in Hungary

In recent years, a series of irregularities have been revealed in relation to judicial appointments in Hungary which have compromised judicial independence and raised serious rule of law concerns. These problems have been highlighted by various domestic and international stakeholders, and issues in the judiciary have become a core chapter in negotiations between Hungary and the EU within the framework of several rule of law mechanisms. The latest round of debates revolves around judicial appointments made by Chief Justice Varga to the Supreme Court which again raise the problem of institutional manipulation of the rules safeguarding the independence of the judiciary.

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19 September 2022

How to Deal With Evil Law in Hungary and Elsewhere

The Hungarian authoritarian regime that arose in the populist wave of societal processes accompanying the 2008-2009 economic and financial crisis has created a legal system in Hungary which is flawed and compromised in numerous ways. But is it valid? Can the law this regime put into force be accepted as law at all? It appears that, with a few exceptions, the debates on restoring constitutionalism have not addressed this issue in depth. This article intends to demonstrate that the Hungarian legal system does indeed lack validity. To argue my point, I am using a simple formula that is easy to articulate and has symbolic meaning for practice in dark times.

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11 July 2022

Will the Commission Throw the Rule of Law Away in Hungary? 

The Hungarian government is publicly saying that it is nearing a deal with the European Commission to unlock the Recovery Funds that have been withheld because the Commission has not yet approved Hungary’s plan for spending those funds.    Apparently, Hungary has agreed to four conditions that will allow the €7bn worth of grants and about €8bn in low-interest loans to be approved.  But if those are any indication of the price that the European Commission will extract for comprehensive violation of the rule of law, the European Commission is making a colossal mistake.

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18 June 2022

The Role of Referenda in Orban’s Regime

Following the parliamentary elections and the national referendum in April 2022, the OSCE found that the legal framework was inadequate for the conduct of a democratic plebiscite. Even though the observers noted several shortcomings of the legal regulation and documented many serious anomalies of the electoral system, they failed to put their analysis in a broader political and legal context. The aim of this short piece is to briefly describe the role that the referenda play in Orbán’s regime.

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02 June 2022
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Competition and Conditionality

On 5 April 2022, just two days after the Hungarian national elections, the European Commission formally announced that it would apply the conditionality mechanism enshrined in Regulation 2020/2092 in relation to Hungary. In the past the Commission has frequently addressed issues related to “systemic irregularities, deficiencies and weaknesses in public procurement procedures”. In Hungary, however, it has not probed the enforcement of competition (cartel) law in public tender procedures. The Commission should seize the opportunity to act in this area.

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26 May 2022

Illiberals of the World Unite in Budapest – Yet Again

Despite their strong localist and nativist inclinations, traditionalism does not turn illiberal democrats and autocrats against international cooperation, and their political ambitions do not halt at disrupting the operation of supranational organizations. Rather, they use both ad hoc opportunities and a regularly recurring annual events for networking. What marks these occasions is the careful selection of trusted participants based on strong personal connections, along shared values across different religions and continents.

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19 May 2022

What Culture Wars Hide

The American Conservative Political Action Coalition (CPAC) is meeting in Budapest on 19-20 May. The meeting signals that US conservatives have chosen Hungary as proof of concept for the politics they want. Prime Minister Viktor Orbán is proudly illiberal and proudly politically incorrect. Having won his fourth consecutive election in April with his largest parliamentary majority yet, Orbán demonstrates to American conservatives that his brand of politics can triumph.

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10 May 2022

Never-Ending Exception

The planned 10th amendment to the Hungarian constitution aims to rewrite the current rules of Article 53, which allows the government to declare a state of danger (and rule by decree as it did during the last two years) in the event of a natural or industrial disaster endangering lives and property, or to mitigate the consequences thereof. According to the proposed new rules, the government will also be able to declare this kind of emergency ‘in the event of armed conflict, war or humanitarian catastrophe in a neighbouring country’. This is just the latest chapter in the story of the democratic and rule-of-law backsliding in Hungary.

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10 April 2022

From Shrinking to Closing Civil Society Space in Hungary

In a classy late Friday dump, on April 8, 2022, the National Election Commission fined over a dozen Hungarian civil society organizations for illegally interfering with the referendum held on election day (April 3, 2022). These NGOs ran a month-long campaign encouraging voters to cast invalid votes in response to the government’s referendum question. Altogether the fines add up to 24.000 EUR: the leaders of the campaign, Háttér Society for LGBTQI rights and Amnesty International Hungary were fined approx. 8.000 EUR each. The NEC found that encouraging voters to cast invalid ballots amounts to an abuse of rights, as it defeats the purpose of exercising popular sovereignty through a popular referendum.

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07 April 2022

The Blame for Defeat and the Morality of Politics

The increased support of Fidesz by the majority of voters, who casted votes on 3 April despite Orbán’s immoral stance towards Putin’s war, and also these voters’ little appreciation of freedom and almost none for limiting power, raises the question whether, besides the autocrat, the opposition, and the elite, we cannot blame also the ‘people’ for the opposition’s defeat and Fidesz’s victory.

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06 April 2022

Why They Win

It is difficult for us to acknowledge that populist illiberalism is successful and, until it is confronted by a serious economic crisis, cannot be replaced by elections. That, however, seems to be the case, at least in a society where there is little appreciation for freedom and almost none for limiting power. Let us at least be honest with ourselves: such electoral victories can hardly be explained by anything else.

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04 April 2022

Why We Lost

The united opposition in Hungary has suffered a crushing defeat at the parliamentary elections yesterday. Some of my friends and acquaintances will blame for the outcome the new electoral rules produced by Viktor Orbán’s government, and his high degree of control over electronic and printed media. They will be wrong, as they often were before. We lost! And by numbers that completely falsify the electoral rule thesis, that suggested in all its versions that the rules give Fidesz 3-5 % advantage.

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18 March 2022
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How to Set Aside Hungarian Cardinal Laws

The anti-Fidesz coalition could win the next Hungarian elections. That, however, is only one step on a long path back to a full democracy. Fidesz has skilfully entrenched its power, personnel, and policies. How could a new majority overcome this, align the Hungarian legal order with European standards, and allow for democratic governability?

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01 March 2022

Constitutional Complaint as Orbán’s Tool

The re-regulation of the ex-post review competence and the introduction of the “full” constitutional complaint in 2012 provided a good justification for the Constitutional Court to shift its focus from the control of the legislature dominated by the illiberal Fidesz government to the supervision of the judiciary. However, the justices have not remained simply deferential. They proactively helped to repurpose the constitutional complaint and convert a fundamental rights protection mechanism into a tool reinforcing the government’s interests.

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22 February 2022

Not looking up

It now seems that after the ruling is before the ruling. The Commission is intent on continuing with its wait-and-see approach, a situation which Hungarian MEP Katalin Cseh compared to the Netflix movie “Don’t look up”, in which the President of the United States decides to ignore the huge comet approaching the earth. While in the movie the comet finally destroys the planet, the European Parliament, however, is determined not to let it come to that. It has made clear that it will not tolerate this policy of looking the other way and has taken up arms.

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17 February 2022
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In Defense of Its Identity

The introduction of rule of law budgetary conditionality, as approved by the Court, is a first step in the right direction. But the Union must go further. Taking a page from fundamental rights and anti-discrimination law, we suggest the systematic, deliberate, and transparent incorporation of rule of law considerations into all Union policies and practices at all stages, from planning and legislation to execution and enforcement, with the aim of actively promoting, realizing, and sustaining the rule of law throughout the Union.

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16 February 2022

No More Excuses

Sitting as a full court, due to the exceptional importance of the case, the Court of Justice has dismissed the annulment actions brought by the Hungarian and Polish governments against the Rule of Law Conditionality Regulation. A non-exhaustive account of the main substantive issues addressed by the Court.

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Mutual (Dis)trust

Last week, the General Court of the European Union, in its judgment T-791/19 Sped-Pro, recognized for the first time the impact that systematic rule of law deficiencies have on national competition authorities. The judgement is seminal, in that it openly questions the ability of national authorities impacted by rule of law backsliding to effectively enforce EU law. The judgement also goes to the heart of explaining the pivotal constitutional role played by competition law within the EU legal order.

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24 December 2021

Removing the Cement from Hungary´s Constitutional Edifice

It seems to me that we are asking two questions: First, is Hungary´s constitutional system so damaged that it no longer reflects the core tenets of democratic constitutionalism? My short answer is, yes, but the case needs to be made comprehensively. The second questions is: Could the current constitution be repaired although it is set-up to impede repair? My short answer is: It depends on the post-election context and we should not jump too easily to leave the current legal framework.

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23 December 2021

Why Throw a Constitution out of the Window Instead of Making it Work?

If the constitution-making and amending by Fidesz with their legally obtained two-thirds majority counted as illegitimate, constitutional revision with a simple majority cannot be acceptable. If the sudden redesign of institutions gave reason for serious concern eleven years ago, it cannot be welcomed now.

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22 December 2021

Handle with Care

I will, in what follows, seek to answer the overarching question of this symposium, starting from a cautionary Romanian rule of law (RoL) reform tale. Other things being equal, its lessons may be extrapolated to the specific case of hopefully post-Orbánite Hungary. The specific context of Hungary presents, at least apparently, the Romanian problem in reverse, namely, the transition from an authoritarian nationalist regime to a pluralist, European, rule of law order.

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21 December 2021

Escaping Orbán’s Constitutional Prison

Backsliding democracies around the world all face the problem of how to restore the rule of law. Precisely because it is already embedded in European law, with deep Hungarian roots that have long honored European traditions and its international law obligations, Hungary has the option of simply embracing European law to provide a legal path back to the rule of law

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16 December 2021

Governance or Revolution?

The call from Andrew Arato and Andras Sajó starts an important and timely debate. It is indeed a thorny question in which cases a formal breach of constitutional norms is the only way to restore constitutionalism. I make three claims: First, while the potential opposition government’s legislative power will indeed be constrained, it will not be entirely powerless. Second, many of these constraints do not stem from constitutional provisions per se, but from informal practices within constitutional organs, and thus cannot be addressed by only formal constitutional changes, revolutionary or otherwise. Third, in the present situation a calculated formal breach of the constitution will most likely lead to civilian strife, political paralysis and radicalization. It will also have the potential to destabilize the European Union.

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Chekhov’s Gun

On 9 November, the Fidesz-majority in the parliament passed an amendment on the registration of permanent addresses in Hungary, which allows to register a permanent address without actually living there. In addition, creating a fictional address will no longer be a punishable crime, as the parliament also modified the Penal Code by deleting this specific case from the provisions of document falsification. This legislative step opens the floodgates of voter tourism for the Spring parliamentary elections creating legal but unfair and undemocratic possibilities for winning the most competitive Single Member Districts.

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15 December 2021
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Full Steam Back

On 10 December 2021, almost exactly five years after its infamous Identity Decision, the Hungarian Constitutional Court was expected by the Government to declare the ECJ Judgement C-808/08 to be contrary to Hungary’s constitutional identity. But as a big surprise for many, the Court dodged the conflict and avoided to offer arguments against the supremacy of EU law to the Hungarian Government. Unlike Poland, it has only just prevented a full-blown conflict with the EU.

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14 December 2021

Restoring Self-Governance

Sometimes, probably often, the new anti-authoritarian majority will not be large enough to satisfy the requirements of the nation’s amendment rule for constitutional change. What can be done under those circumstances? One possibility, of course, is simply to push through constitutional change without regard to the pre-existing amendment rule. Sometimes that will be enough. Sometimes it won’t – particularly where the idea of legality has powerful political support. Where simply bulling ahead with constitutional change seems unlikely to be productive, what can be done? The answer, I believe, combines foundational constitutional theory and practical political reality.

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11 December 2021

How to Return from a Hybrid Regime to Constitutionalism in Hungary

Revolutionary proponents of instant radical solutions are offering Jacobin moralist arguments about the evilness of the old legal system and enthusiastic political slogans about a bright future under the new Constitution, but they are staying silent about the most likely outcome of their plans: massive armed violence.

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09 December 2021

“La légalité nous tue”

It is not out of question that the united Hungarian opposition will obtain Parliamentary majority in 2022, but a constituent supermajority of two thirds remains wishful thinking. Winning the election will not result in actual governmental power. The Fundamental Law was a nice opportunity to purge constitutional institutions. Is another round of purge inevitable with the restoration of the rule of law? The dictates of necessity offer an unappealing perspective and textbook constitutionalism is not prepared for dirty reality.

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26 November 2021

The Sanctity of Preliminary References

A national supreme court must not declare a request for a preliminary ruling by a lower court unlawful on the ground that the referred questions are irrelevant and unnecessary for the original case. This has been held by the Court of Justice of the EU (CJEU) in its important decision C-564/19 IS. In addition, the CJEU held that EU law also precludes disciplinary proceedings from being brought against national judges on the ground that they made a reference for a preliminary ruling. The case also raises important questions to what extent preliminary rulings can be effective against rule-of-law decline and make up for political EU institutions’ failure to use adequate EU tools of supervision and enforcement.

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17 November 2021
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Restoring Constitutionalism

How to restore constitutionalism and the rule of law is a somewhat neglected problem among constitutionalists. Thanks to forthcoming elections, some countries like Hungary where “democratic backsliding”  has taken place, may have the opportunity to restore the rule of law. Is a democratic community bound to follow constitutional rules of dubious democratic nature? Or can these be replaced in violation of legality, for example in an extra-parliamentary democratic process? If so, under what conditions? We call on constitutionalists to provide answers to these questions and formulate alternatives between the two extremes of legality and paralysis, possibly involving an element of illegality, but compensating for this by dramatic increase of democratic legitimacy.

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11 November 2021

(Il-)Legal Gymnastics by Poland and Hungary in EU Border Procedures

This week, Poland has made headlines yet again for dispatching 12,000 guards to the border between Poland and Belarus and the use of tear gas to prevent third country nationals (TCNs), including children, from crossing into Polish territory. It is acutely problematic that Poland has foregone any semblance of conformity with EU law at all in the adoption of its domestic legislation on border procedures.

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14 October 2021

A Closing of Ranks

On 11 and 12 October the Court of Justice of the European Union sat in Full Court composition (a rarity) to hear Hungary’s and Poland’s challenge of the legality of the rule of law conditionality regulation. Its ruling will follow (hopefully shortly) the Advocate-General’s Opinion announced for 2 December 2021. It will most likely reconfirm that the Union legal order is based on clear and binding rule of law norms, and that these must, of legal necessity, apply across all EU policy fields, including the EU budget. It will be a judgment of great significance about the very nature and purpose of the EU.

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14 July 2021

Human Rights As Hate Speech

On 15 June 2021, the Hungarian Parliament passed Act no. LXXIX of 2021 which pursued a homophobic and transphobic agenda, curtailing the rights of LGBTQI people. The law was received with unprecedentedly harsh criticism, to which the Hungarian government responded in a resolution, adopted on 6 July. In it, human rights arguments are dismissed as a form of Western indoctrination.

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02 July 2021
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So that the Name Hungarian Regain its Dignity

We believe that the replacement of the Fundamental Law is necessary, with a rule of law constitution that restores freedom. The new document should be one created by a democratic constituent power according to newly enacted rules, making every effort to avoid civil war and its usually accompanying violence. In its process of drafting the role of the 1989 round table can be a model, even if we cannot count on the acceptance of its new constitutional draft by 2/3 of the parliament elected in 2022.

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29 June 2021

Oblique Strategies

On June 25, 2021 Hungary’s two top judges – the president of the Constitutional Court, Tamás Sulyok and the chief justice of the Kúria, András Varga Zs. – warned attendants of a conference on the Fundamental Law of an impending constitutional coup. They were addressing the nation’s legal elite – including the speaker of the Parliament, the Minister of Justice and the Prosecutor in Chief – on the premises of the Kúria. The guardians of the Fundamental Law activated the language of militant democracy ahead of the 2022 elections.

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25 June 2021
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Attack on the Rights of LGBTQIA+ People in Hungary: Not Just Words, but Deeds as Well?

On 15 June, the Hungarian parliament voted by an overwhelming majority to pass legislation that, in essence, and under the pretext of protecting minors, bans images or content that depicts or ‘promotes’ homosexuality or trans-identity from the public space. The new law adds to a long list of measures already adopted by Hungary over the past several years, that also have the objective of discriminating and stigmatising the LGBTQIA+ population. These measures moreover are part of a wider context of deliberate erosion of liberal democracy in Hungary. The European Union's toolbox reveals its limits here. Why, therefore, not turn to the Council of Europe, with its European Convention on Human Rights and European Court of Human Rights?

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28 April 2021
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Solving the Copenhagen Dilemma

By proclaiming an entirely new ‘non-regression’ principle in EU law based on the connection between Articles 49 TEU (EU Enlargement) and 2 TEU (EU values, referred to from Art. 49), the Court of Justice achieved huge progress in addressing a well-known lacuna undermining the EU legal order. The ‘non-regression’ principle is a new important direction in the notable fight for the EU rule of law started with the discovery of EU competence in, in particular, the area of judicial independence and the organization of the judiciaries in the EU Member States.

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20 April 2021

Jeopardizing Judicial Dialogue is Contrary to EU Law

On 15 April 2021, AG Pikamäe delivered his opinion in the IS case, originating from a Hungarian criminal proceeding against a Swedish national. The national judge referred three questions for preliminary reference to the CJEU, one regarding the suspect’s right to translation and two regarding the general status of judicial independence in Hungary. As a reaction, the Hungarian Prosecutor General initiated a so-called “appeal in the interests of the law” and the Hungarian Supreme Court held the reference to be unlawful.

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06 April 2021

A Nation (Un)Dignified

The recent jurisprudence of Hungarian apex courts based on changes inserted into the Hungarian Fundamental Law of 2011, and the provisions of the 2013 Civil Code on “violating the dignity of the Hungarian nation” set a dangerous precedent that could be broadly applied against critics of the government, aka the EU’s first electoral autocracy. The present blog post critically analyses a judgment of the Hungarian Supreme Court (Kúria) of March 2021, which is highly likely to produce a chilling effect.

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11 March 2021

Hungary and the Pandemic: A Pretext for Expanding Power

A year ago, the first lockdowns were introduced in Europe. Since then, European governments have been busy introducing COVID-19 containment measures, including social distancing rules and mask mandates. For two months, they have been vaccinating the people. Ostensibly, the EU countries have taken similar steps. This piece provides a sketch of how the Hungarian government has handled the pandemic.

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05 March 2021

Gewinnen durch Verlieren

Viktor Orbán könnte nächstes Jahr abgewählt werden. Aber das heißt noch lange nicht, dass jemand anders an seiner Stelle regieren kann.

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Winning by Losing

Viktor Orbán could be voted out of office next year. But that does not mean that someone else can govern in his place.

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25 February 2021

The EU Parliament’s Abdication on the Rule of Law (Regulation)

To paraphrase a previous blog entry by Scheppele, Pech and Kelemen, if the The Decline and Fall of the European Union is ever written, historians will conclude that not only the EU’s two key intergovernmental institutions – the European Council and the Council – should bear the greatest responsibility for the EU’s demise, but also the EU Parliament. Indeed, by failing to challenge the legality of the EUCO’s December conclusions encroaching upon its own prerogatives, the EU Parliament might have just become an enabler of the ongoing erosion of the rule of law across the Union. Paradoxically, it did so after relying on incomplete and partial opinion of its own legal service advising the Parliament to trade the respect of the rule of law away for political convenience.

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08 February 2021

Between Rule of Law and Reputation

On 27 January, Frontex announced the unprecedented decision to suspend its activities in Hungary. The choice to withdraw the Agency from Hungary is not a clear, serious, and meditated move in the Commission’s action for the rule of law. Nor is it a sign of a coherent and firm intention to put an end to the Agency’s engagement in human rights violations at EU borders, since it keeps operating in other frontline Member States with equally problematic issues. It rather represents an attempt to remedy the already compromised reputation of Frontex.

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05 February 2021

Loyalty, Opportunism and Fear

The pressure on universities and academic freedom in Hungary is increasing. With a reform program initiated in 2019, the government has started to restructure universities, from a state-funded to a privately-funded model. At the end of the current round of restructuring in 2021, there will be more private universities than public ones. While universities officially have to request their privatisation to start the process, it is clear that the aim of the reform is to forcefully reduce the independence of universities. In January, a number of universities were given an ultimatum until the end of the month to decide on their transformation.

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22 December 2020

Ein Freund, ein guter Freund

Der Kompromiss mit den Regierungen Ungarns und Polens bezüglich des Rechtstaatsmechanismus hat eine Menge – berechtigter - Kritik erfahren. Das Appeasement von Regierungen, die gegen die Grundwerte der EU verstoßen, ist zwar in der Logik der Institutionen und des politischen Handelns in der EU tief verwurzelt. Aber die zahme deutsche Reaktion auf die Eskapaden der ungarischen Regierung hat durchaus strukturelle Gründe, die weit über die Logik der EU-Entscheidungsprozesse hinausgehen. Der perpetuierte Empörungsloop über das ungarische Regime in deutschen Feuilletons und Polit-Talkshows, an dem regelmäßig auch Regierungspolitiker teilnehmen, verbirgt die Realität: Nämlich, dass die deutsche Regierung, und vor allem die deutsche Wirtschaft, sich längst mit dem ungarischen Regime zum gegenseitigen Interesse und Nutzen arrangiert hat.

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21 December 2020
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Still Waters Run Deep

That lawsuits taken by a Hungarian human rights NGO can reach the CJEU swifter than those launched by the Commission is clear evidence that strategic litigation and determined advocacy can move mountains. At the same time, this is also a cause for great concern. It speaks volumes of the Commission’s reluctance to promptly and effectively go after a Member State that deliberately ignores and breaches EU law.

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14 December 2020

Towards an EU Cast in the Hungarian and Polish Mould

It is a serious achievement on Hungary’s and Poland’s part to drive EU institutions so far into mocking the rule of law in the spirit of defending it. Then again, this is exactly what illiberal constitutional engineering is about: using familiar constitutional and legal techniques for ends that subvert constitutionalism and the rule of law.

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13 December 2020
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Compromising the Rule of Law while Compromising on the Rule of Law

Some EU leaders may assert that EU money will now be brought under the rule of law given that the Conditionality Regulation is now guaranteed to pass. But they are wrong.

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04 December 2020

Klagen und klagen lassen

Über Mitgliedstaaten, die Mitgliedstaaten verklagen, und andere aktuelle Rechtsstaatlichkeitsthemen

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Sue and Let Sue

On member states taking member states to court, and other topical rule of law affairs

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23 November 2020

Die Rückkehr der Jedi-Ritter?

Könnte man die finanziellen Covid-Hilfsmaßnahmen außerhalb des rechtlich-institutionellen Rahmens der EU vereinbaren – ohne Polen und Ungarn? Die Geschichte der europäischen Integration ist immer wieder von intergouvernementaler Zusammenarbeit jenseits des bestehenden Primärrechts vorangetrieben worden. Für die vorliegende Problemlage erscheint eine intergouvernementale Lösung zwar rechtlich möglich, sie erweist sich indessen aus nicht-rechtlichen Gründen als unbefriedigend.

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20 November 2020

The Commission’s Al Capone Tricks

In its judgement dealing with the Central European University, the CJEU had to employ a trick to address the rule of law issue at stake: It found that Hungary had violated the General Agreement on Trade in Services. The legal trick was succesful but in reality, the ruling came too late. The Central European University has moved to Vienna and will not return to Hungary.

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So It Goes – Part II

This week, the Hungarian and Polish governments vetoed the critical elements of the European Multi-Annual Financial Framework and Recovery Fund that required the unanimous consent of European Union Member States. Prime Minister Orbán had been threatening this veto ever since the European Commission proposed to link the distribution of these funds to comply with the rule of law. The Brussels veto this week coincided with a domestic legal blitz in Budapest as a major constitutional amendment, and a flurry of new laws and decrees appeared all at once. The two legal events are related.

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19 November 2020
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So It Goes – Part I

The Hungarian government is now so routinely using unconstitutional emergency powers to circumvent constitutional constraints that one must conclude that the government’s main aim is to govern outside the very constitution that it wrote for itself a mere decade ago. At this point, it seems irrelevant whether this limitless power is achieved with or without the declaration of a constitutionally authorized state of emergency. Government unconstrained by the constitution in Hungary has become the norm and not the exception.

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18 November 2020
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A New Chapter in the Hungarian Government’s Crusade Against LGBTQI People

On 10 November 2020 - the same day the Hungarian National Assembly authorized the Government to rule by decree for 90 days in the state of danger - the Minister of Justice submitted a whole package of legislative reforms. Among them, the Ninth Amendment to the Fundamental Law of Hungary. Two proposed amendments would directly detrimentally affect the rights of the LGBTQI community, which, we argue, would make it extremely difficult to deconstruct the institutionalized trans- and homophobia which the government has been further entrenching for years.

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12 November 2020

Power Grab in Times of Emergency

In the late hours on 10 November, the National Assembly adopted an Enabling Act authorizing the Orbán cabinet to govern by decree for 90 days, even though the executive already had very broad legislative power due to the introduction of the medical state of emergency. The ink was barely dry on the approval of the delegation of extraordinary legislative power to the government, when the Minister of Justice introduced several bills on important legislative reforms, such as the Ninth Amendment to the Fundamental Law and changes to the electoral system.

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10 November 2020
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A game hacked by the dealer

There are many ways a government can undermine judicial independence, even without explicit legislative action. One of the most effective ways is to makes sure that the ‘right judges’ will get the important cases. At the Hungarian Kúria, the case allocation system clearly violate international standards.

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08 November 2020

Of Asymmetries, Aspirations and…Values, too

How are the transnational legal order (“TLO”) and transnational governance affected by the democratic backsliding, authoritarianism and populism? As painfully evidenced by the Polish and Hungarian cases, the system of governance and constitutional design of the European TLO have been in error of “normative asymmetry”: transnational authority to ensure that the states remain liberal democracies has not been effectively translated into the transnational law and remedies. In order to make the TLO more responsive to the democratic threats, however, it is crucial to take on the challenges that go beyond institutional and procedural tinkering.

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13 October 2020
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The Last Days of the Independent Supreme Court of Hungary?

Ordinary courts seem to have remained the last bulwark of individual freedom and the rule of law since the Fidesz government has successfully undermined other nominally democratic institutions, including the Constitutional Court. While the recently published EU Rule of law report discusses the problems of judicial independence in great detail, so far, ordinary courts have resisted political pressure relatively well, largely because of the ruling party’s failure to capture the professional leadership of the judiciary. Various legislative changes by the government in recent years coupled with the upcoming election of the Supreme Court’s new Chief Justice, however, could be fatal to the independence of Hungary’s entire justice system.

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08 October 2020

Finally: The CJEU Defends Academic Freedom

The CJEU’s judgment against Hungary in the CEU case is the first major judicial pronouncement by a European court on the institutional dimension of academic freedom as a fundamental human right. Infringement action has become the surprise weapon in the Commission’s rule of law toolbox. The initial surprise is a thing of the past: over the years the Hungarian government has built some defenses of its own, using familiar components of the European constitutional architecture in service of illiberal democracy.

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29 September 2020

No Doubt, Lots of Benefit

The Hungarian government demanded the dismissal of Commissioner Vera Jourová over a quip she made in an interview in the German press. The day before the Commission’s first annual report on the rule of law is scheduled to land, the EU finds itself steeped in a high level inter-institutional conflict — sown by a self-proclaimed illiberal democrat. This is what being stranded by one’s own self-deception looks like.

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16 September 2020

Fear and (Self-)Censorship in Academia

Concerns with media freedom in Hungary go back years and they are also used as the case study for the Reverse Solange proposal presented on this blog. The most recent event is the takeover of the largest online news portal, Index, where the entire staff left as a response. A less documented arena is the academic setting we work in and which influences our work and everyday life. In both fields, takeover and blatant censorship is but the tip of the iceberg: the most visible part and indicative of a larger problem. In this post, I describe the problem through illustrative cases and discuss possible responses.

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07 September 2020

Aux armes, comédiens!

Revolutionary spirit in Budapest: students of the University for Theater and Film Arts blockaded the main entrance of their institution. The reason for resistance was another attack on academic freedom by the Fidesz government. It decided to “privatize” the university and to delegate the rights of control to a foundation established by the state - yet another stage in the government's culture war.

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08 August 2020

Blaming the People is not a Good Starting Point

A few days ago a very thought provoking article written by Prof. J. H. H. Weiler was published on ICONnect blog. I very much agree with the core of his argument that we need to pay more attention to the popular support enjoyed by the Orbán government and we cannot blame everything and anything on him alone. However, there are several points in his argumentation which I would like to address.

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22 June 2020
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Defending the Open Society against its Enemies

On 18 June 2020, in the case of Commission v Hungary (Transparency of associations), the Grand Chamber of the Court of Justice held that Hungarian authorities “introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations” when it adopted a new legislation on NGO in 2017. How will the Hungarian government react? Six potential scenarios can be outlined from not doing anything (scenario 1) – an unlikely option due to the threat of pecuniary sanctions – to full and good faith compliance with the judgment resulting in the total repeal of the Lex NGO (scenario 6) – equally unlikely. Between these two, four additional ones may be foreseen.

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30 May 2020
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From Emergency to Disaster

This week, Prime Minister Viktor Orbán’s government put before the Hungarian Parliament two draft laws that, if passed, would end the state of emergency and create a new legal framework for handing the pandemic from here on out.  In doing so, the government was responding to those who criticized the unlimited power that the government had been given in the law creating a pandemic emergency, the Enabling Act of 30 March 2020.  That law allowed the government to override any law by decree, a power that was unlimited in both scope and time and that violated Fidesz’ own “illiberal” constitution the Fundamental Law.  

The new laws are no better, and may even be worse.   One of the draft laws is less than one page long accompanied by two pages of justification.   It purports to repeal the initial Enabling Act (about which, more below).    The other one is called the law on “transitional provisions” and at first it seems only to provide lots of technical answers to questions that arise about how to reset deadlines for various legal processes that were delayed when the economy stopped. The new laws are no better, and may even be worse.

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23 May 2020

Showdown at the Last Chance Saloon

As a political slogan, and a guideline in times of crisis, ‘whatever it takes’ undoubtedly has enormous appeal, and may in certain circumstances justify novel and untried forms of action. However, in a polity governed by the rule of law, there are limits to this approach which, if not respected, may cause greater problems than those which provoked the action in the first place.

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19 May 2020

The Last Chance Saloon

To all intents and purposes, Orbán and his government have ceased to be democratically accountable either to the Hungarian Parliament or to the citizens of Hungary. The words in that last sentence are chosen carefully and with meaning. This blogpost suggest that Article 10 TEU may provide a basis for the exclusion of Hungarian representatives from the European Council and the Council of the European Union.

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15 May 2020

The Curious and Alarming Story of the City of Göd

Misusing its extraordinary law-making powers which were conferred to it by the controversial Enabling Act during the epidemic state of danger, the Hungarian government expropriated the city of Göd. Apparently the government did so in order to punish the opposition lead municipality - and it seems to prepare further expropriations.

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10 May 2020

Warum Europa nicht auf Ministerin Varga hereinfallen sollte

„Die Welt” berichtete am 12. April von einem Gespräch mit der ungarischen Justizministerin dr. Judit Varga über die am 11. März in Kraft getretenen Notstands- und Ermächtigungsgesetze. Die Ministerin halte die Kritik daran (so auch hier) für „Falschnachrichten” und „Ausdruck einer liberalen Meinungsdiktatur in Europa”. Da es sich hier um ein Notstandsgesetz handelt, will ich vorsichtig vorgehen. Bei der Beurteilung des Gesetzes ist allein der Text die maßgebende Tatsache. Die Stellungnahme der Ministerin gleicht aber eher einer politischen Propaganda als einer sorgfältigen Analyse der Regelung.

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28 April 2020

On Doctrinal Contortions and Legal Fetishes

There seems to be a belief – especially persistent among some EU legal scholars – that even the largest political problems can be solved through the law. It suggests that any balance of authority and legitimacy between the EU and the Member States is, in fact, a mere technicality of institutional configuration, and a mere doctrinal sleight of hand would suffice to tip the scale of authority one way or another. This belief also seems to be underlying a recent blogpost by Christophe Hillion.

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27 April 2020
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Corona Constitutional #16: Scheidung auf Europäisch

Wenn Polen und Ungarn sich erkennbar nicht mehr an das EU-Recht gebunden fühlen - was ist das dann anderes als eine Erklärung, nicht mehr Mitglied in der Europäischen Union sein zu wollen? Der Weg zum Polexit bzw. Hungrexit geht über Artikel 50 des EU-Vertrags, und CHRISTOPHE HILLION schlägt dem Rat vor, diesen Weg notfalls auch ohne das Einverständnis von Polen und Ungarn zu beschreiten. Ob und wie das europarechtlich genau funktionieren würde, bespricht Max Steinbeis mit dem Professor für EU-Recht in unserer heutigen Podcast-Folge.

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Poland and Hungary are withdrawing from the EU

The latest developments in Poland and Hungary beg the question of what the EU may, or indeed shall do when a Member State no longer fulfils the prerequisites of membership. Can the Union force that state to meet its duties against its will? Or should it ultimately acknowledge that state’s choice, and proceed with its orderly retreat from the EU legal order?

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Let’s not fool ourselves either!

I read with great interest the blogpost “Don’t be fooled by autocrats!”. However, to my great regret there are some factual errors in the text which require clarification and, consequently, the post’s very dire conclusion about the actual situation in Hungary shall be to a certain extent revised.

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22 April 2020
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Don’t Be Fooled by Autocrats!

On 9 April, Vera Jourová, Vice President of the European Commission for values and transparency with lead responsibility for rule of law, gave an interview to Euronews on democracy in the pandemic. A journalist asked whether she believes that Hungary still qualifies as a democracy after the Enabling Act creating an indefinite state of emergency was enacted by the Hungarian Parliament on 30 March. Her answer was not reassuring.

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15 April 2020

Infringement Procedures in the Time of COVID-19

In the last weeks, members of the European Parliament and observers in the legal and academic community have, explicitly or implicitly, criticised the European Commission and the Court of Justice for their handling of ongoing infringement procedures. Put simply, the two institutions have been criticised for moving the existing cases forward, despite the fact that certain countries (first Italy, then followed by almost all other Member States) are in lockdown and, consequently, their administrations are unable to effectively respond.

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11 April 2020

Fighting Fake News or Fighting Inconvenient Truths?

Last week, the Hungarian Parliament amended the Criminal Code: it created the new crime of “obstructing epidemic prevention” and amended the already existing crime of scaremongering (rémhírterjesztés). The old version did have some shortcomings but the now adopted modification addresses none of the previously existing problems and makes the crime more susceptible to abuse by the authorities.

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31 March 2020
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Corona Constitutional #0

Folge #0 unseres brandneuen Corona-Podcasts: ein Gespräch mit WALTHER MICHL über Ungarn, die EU und was sie sich gefallen lassen darf und was nicht.

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Illiberal Consti­tutionalism at Work

Hungary’s and Poland’s responses to COVID-19 demonstrate how illiberal constitutionalism works in practice. In both countries, national constitutional or sub-constitutional emergency regimes provide the framework for government action. Different political and constitutional contexts, however, mean that their specific proceedings diverge.

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28 March 2020

Die Unstrittigkeit des Zwecks

Wenn die Bedrohung, wie im Fall des Virus, als natürliche Gegebenheit auftritt, kommen leicht auch die Maßnahmen, um ihn zu beseitigen, als natürliche, d.h. fraglos vorgegebene Maßnahmen in Betracht. Eine Gefahr liegt hier darin, von einer Natürlichkeit des Zwecks auf die Natürlichkeit der Mittel zu schließen. Dass die Maßnahmen aber nicht natürlich gegeben, sondern politisch entschieden sind, muss demgegenüber im Blick bleiben.

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24 March 2020

Pandemic as Constitutional Moment

Viktor Orbán has finally created for himself a constitutional moment, one where he can use the tools of constitutional democracy to access unrestrained powers to save the nation. This move should be a major concern for friends of constitutional democracy around the globe: in the midst of a global pandemic and a looming global economic crisis, PM Orbán may well be on route to kick start a genuine constitutional pandemic.

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12 March 2020

Fighting Prison Overcrowding with Penal Populism – First Victim: the Rule of Law

On March 7th, a new Hungarian law came into force, allegedly intended to stop the “abuse” of compensation claims due to inhuman conditions in prison (“abuse law”). Even if this turns out to be yet another populist gimmick, the new legislation has important ramifications for the rule of law in Hungary because it sends the message to the citizens and the courts that the finality of judgements and court rulings are relative.

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08 March 2020

The EU, Segregation and Rule of Law Resilience in Hungary

The legal and political consequences of the Hungarian government’s campaign against an appeal judgment which ordered the payment of compensation for school segregation can reverberate across the EU, because of the ubiquitous nature of segregation. Should the Hungarian government prevail, the case may negatively impact the integration of minorities in other Member States as well, particularly if the European Commission fails to increase its efforts to enforce the Racial Equality Directive.

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26 February 2020

The Ghost of an Authoritarian State Stands at the Door of Your Home

In the late hot summer of 2033, in the home of a retired judge, a copy of a letter dated 21 February 2020 was lying on a desk. It was a father’s letter to his lawyer son. Here are its contents...

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27 January 2020

The Hungarian “Lex NGO” before the CJEU: Calling an Abuse of State Power by its Name

On 14 January 2020, Advocate General Campos Sánchez-Bordona delivered his Opinion in Case C-78/18 on the restrictions incorporated into a 2017 Hungarian law on the financing of NGOs from abroad. He makes clear that Hungary’s “Lex NGO” not only restricts the free movement of capital but also violates several fundamental rights, and is therefore incompatible with EU law.

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24 January 2020

Was qualmt denn da so komisch?

Über Polen, Russland und andere "gelenkte Demokratien", UK und andere (noch) nicht gelenkte Demokratien. Und Deutschland. Und Europa. Und, erwähnte ich das schon? natürlich Polen.

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Have you noticed that burnt smell?

On Poland, Russia and other "guided democracies", the UK and other not (yet) guided democracies. And on Germany. Oh, and have I mentioned Poland? And on Poland.

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23 January 2020

EU Rule of Law Dialogues: Risks – in Context

On January 16, 2020 the European Parliament passed a resolution about the state of the Article 7(1) TEU hearings with Hungary and Poland, noting with concern that “the reports and statements by the Commission and international bodies, such as the UN, OSCE and the Council of Europe, indicate that the situation in both Poland and Hungary has deteriorated since the triggering of Article 7(1) of the TEU”. The resolution is a plea for a structured and more meaningful process in which each EU institution would exercise its existing powers in a meaningful and cooperative manner. The resolution emphasizes that the Article 7(1) TEU preventive process is one of risk assessment and one that may have actual – including budgetary – consequences.

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20 January 2020

“Gelenkte Demokratie” und der Protest der Gelenkten

Um Wahlkabinen-Fotos zu verbieten, bedarf es einer soliden gesetzlichen Grundlage. Das hat der Europäische Gerichtshof für Menschenrechte heute entschieden – in einem ungarischen Fall, der weit über diese Spezialfrage hinausweist.

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11 December 2019

Silencing the Opposition in Hungary

On 10 December, the Hungarian opposition MPs got a lovely present from the governing majority for Christmas wrapped in a big legislative package amending both the Act on Parliament and the Rules of Procedure. The amendments to the parliamentary regulation serve the purpose of silencing the opposition parties which have been constantly gaining strength in the last few months.

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26 November 2019

One Step Back, Two Steps Forward

The Hungarian Government has officially abandoned its plans to reform the administrative court system. However, the plan to subdue the judiciary is pursued as relentlessly as ever: On 12 November 2019, the Hungarian Government introduced an omnibus legislation which would extend political influence over the judiciary and guarantee judicial decisions favorable to the Government in politically sensitive cases.

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22 November 2019

Alles eine Frage der eigenen „Wahl“?

Am 21. November 2019 hat die Große Kammer des Europäischen Gerichtshofs für Menschenrechte in Straßburg (EGMR) seine Entscheidung über die ungarischen Transitzonen gefällt. Die Entscheidung dürfte in Bezug auf Transitzonen an europäischen Landgrenzen einen Präzedenzfall geschaffen haben – wobei das Urteil sehr problematische Implikationen enthält.

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18 October 2019

Closing Loops, Unclosing Loops

On elections in Poland and Hungary and other constitutional matters of hope and despair.

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14 October 2019
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Local Elections in Hungary: the Results in Context

On October 13, 2019 local elections were held in Hungary. Even though the opposition parties had to fight an uphill battle, they achieved significant success not only in Budapest, but also in other big cities. The aim of this article is to put the results in context in order to give a more accurate picture of the current Hungarian situation.

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23 September 2019

Luxemburg as the Last Resort

A criminal proceeding has been suspended by a Hungarian justice of the Pest Central District Court to ask the European Court of Justice preliminary questions, inter alia, about his own judicial independence. Now, Hungary’s Supreme Court has stepped in and ruled that the reference was illegal, essentially arguing that preliminary references are not the fora to discuss such claims. In fact, however, this preliminary reference reveals that all other means to effectively challenge the rule of law backsliding in Hungary have failed.

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07 September 2019
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The Age of Constitutional Barbarism

We need to rediscover the force of normative arguments in order to better understand the autocratic rivals to liberal democracy. Geburtstagskind Verfassungsblog provides a vibrant and openly accessible forum for discussions.

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06 September 2019

Fighting Fire with Fire

At the first sight, the likely nomination of Věra Jourova as Commissioner for rule of law and dropping Frans Timmermans out of the portfolio appears to be a significant victory for the Visegrad Group. However, considering Jourova’s track record, her nomination might be a clever, but hazardous move by Ursula von der Leyen that may deepen the cleavage among the Visegrad countries, put an end to their coordinated acting in sovereignty related issues, and cause more headache in Budapest and Warsaw than expected.

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07 August 2019

A Hungarian Judge Seeks Protection from the CJEU – Part II

In 2012, Hungary introduced a unique system of judicial administration that was criticized by domestic and international actors. This criticism has been validated by events since then which have shown that the National Judicial Council, the highest collective body of judges, is practically unable to counter-balance the broad powers of the President of the National Judicial Office (NJO). This has caused tensions between judges and the judicial administration, something that was predictable in 2012 when the system was introduced and has led to what can only be described as a ‘constitutional crisis’.

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28 July 2019

A Hungarian Judge Seeks Protection from the CJEU – Part I

For the first time, a Hungarian judge stayed proceedings to ask the CJEU preliminary questions about the independence of Hungarian courts. The questions concern the appointment of court presidents and the low salary of judges. The response of Hungarian authorities was quick: Within a week, the Prosecutor General requested the Kúria (Hungary’s Supreme Court) to review the reference with the possible effect of deterring other judges from asking similar questions.

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15 June 2019

Being a Good Dictator is not so Easy

On investigative journalists, homeless people, aberrant academics and other sources of civic unrest and discomfort.

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13 June 2019

„No one has the right to be homeless…”

The Hungarian Constitutional Court's decision on the homelessness ban is not only devastating in terms of outcome, but also in terms of quality of the Court’s reasoning. This poor quality does not stem from the justices’ intellectual inability to adequately address the issues involved in this case, but from unacceptable political considerations spread among the members of the Court.

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11 June 2019
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Human Dignity for Good Hungarians Only

On 4 June 2019 the packed Constitutional Court of Hungary issued an astonishingly inhuman decision: The criminalization and eventual imprisonment of homeless people, the Court declared, is in line with the 2011 Fundamental Law of Hungary. According to the majority, “ (…) nobody has the right to poverty and homelessness, this condition is not part of the right to human dignity.”

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09 June 2019

A Bad Workman Blames His Tools

On caulking walls, laying oxygen pipes and other matters of constitutional craftsmanship

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25 May 2019

Dritte im Bunde: Für mehr Transparenz in der Partei- und Wahlkampf­finanzierung

Heinz-Christian Strache hat sich und seine FPÖ um Kopf und Kragen geredet. In dem heimlich aufgenommen Video, das den ehemaligen Parteivorsitzenden und Vizekanzler von Österreich in einer Villa auf Ibiza zeigt, schwadroniert er u.a. über einen Verein, der der FPÖ nahestehe und an den mehrere Vermögende gespendet hätten, vorbei am Rechnungshof. Der Vorgang wirft ein Schlaglicht auf Defizite der Parteien- und Wahlkampffinanzierung, nicht nur in Österreich.

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01 May 2019

Administrative Judicial Reform in Hungary: Who Gives a Fig about Parliamentary Process?

In the past few months, the Fidesz government has been working on the reform of the administrative judiciary at full speed. The Constitutional Court recently had the opportunity to slow down the process of undermining judicial independence by invalidating the reform legislative act on the basis of procedural irregularities. Even though the law had been adopted as a result of a chaotic parliamentary vote, the justices did not find a violation of the Fundamental Law. The outcome is not surprising, as the Court cannot be accused of exercising a particularly strong control over the parliamentary legislative process in general. What is puzzling, however, is the massive amount of hypocrisy manifested in the reasoning.

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06 April 2019

What Does the Spring Bring for the Rule of Law in Europe?

The Hungarian minister of justice requested the opinion of the Venice Commission on two bills establishing a new administrative court system in November 2018. Yet, before the Venice Commission got to have its say, the twin laws were adopted in December 2018, with the new courts expected to commence their work in January 2020.

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31 March 2019

How to Defend the Integrity of the EP Elections against Authoritarian Member States

The elections to the European Parliament will take place in a few weeks’ time. There is a clear danger that some of the new MEPs will gain their mandates in elections organised by Member States that are not up to democratic standards. The European Parliament should try to defend itself from being infiltrated by MEPs with questionable democratic mandates. It already possesses the competence which is necessary for it, in the form of mandate validation.

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26 March 2019

It’s Not Just About CEU: Understanding the Systemic Limitation of Academic Freedom in Hungary

Recently, there have been great disputes about the state of academic freedom in Hungary. As the country moved from democracy to electoral autocracy, its government started to limit individual and institutional academic freedom at a systemic level. This blog entry wants to explain how systemic limitation of academic freedom works in the higher education of the country, and how the general attack against check and balances affect the academic system.

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23 March 2019

Systemic Error – On Hungary’s Extension of European Voting Rights to Non-Resident Citizens

Last December, the Hungarian legislator adopted a rule that allows non-EU-resident Hungarian citizens to vote at the European Parliament elections. This rule is in line with a 2018 Council decision. Implementation done, EU conformity secured, nothing to see here. Or is there?

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17 March 2019

Fight Fire with Fire – a Plea for EU Information Campaigns in Hungarian and Polish

In the current crisis of democracy in the EU, we should not put too much pressure on the judiciary to fix the rule of law and democracy. Neither should we put too much hope for positive developments on (European) party politics. Rather I suggest that the EU should start speaking directly to the electorate via EU information campaigns in Hungarian and Polish. The 2019 European Parliament elections might provide an adequate framework for such campaigns.

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15 March 2019
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Of Red Lines and Red Herring: The EPP’s Delusions about Restraining Orbán

This post will offer an overview of the main EPP’s ‘red lines’ since the EPP leadership first demanded from Prime Minister Orbán that he immediately comply with EU laws and EPP values nearly two years ago, in April 2017. We will show that, contrary to Weber’s claims about EPP values being non-negotiable, Orbán has repeatedly crossed the EPP’s supposed red-lines with impunity. And rather than being restrained by the EPP, Orbán has sought to transform it.

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05 March 2019

Stop Soros Law Left on the Books – The Return of the “Red Tail”?

On 28 February, Hungary's Constitutional Court found the so-called Stop Soros legislative package constitutional. Shocking as it may seem at first glance, this case reminds us how difficult it is to evaluate the judgments of a constitutional court operating in an illiberal political regime.

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02 January 2019

An Advanced Course in Court Packing: Hungary’s New Law on Administrative Courts

The design and establishment of the new Hungarian administrative judiciary provides insight into a new style of engineering illiberal constitutional democracy through dialogue with European constitutional actors. It is not simply the case that Hungary is undertaking judicial reform while the Article 7 TEU process is on its way. Rather, a new phase of judicial reform is passed under European supervision despite the clear threat it presents for the rule of law.

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18 December 2018

The Democratic Backsliding and the European constitutional design in error. When will HOW meet WHY?

When is the constitutional design of any (domestic, international, supranational) polity in error? On the most general level such critical juncture obtains when polity’s founding document (treaty, convention, constitution) protects against the dangers that no longer exist or does not protect against the dangers that were not contemplated by the Founders. While discussion of the evolution of human rights and international actors in response to social change (LGBT, euthanasia, abortion) is well documented, such evolution with regard to political change (transition from one sort of government to another) is less well documented. Constitutions not only constitute but should also protect against de-constitution. For supranational legal order to avoid a deadlock of „being in error” in the above sense, the systemic threats coming from within the polity’s component parts must be recognised and constitutional design be changed accordingly.

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13 December 2018

How can a democratic constitution survive an autocratic majority?

Can the democratic constitutions of Hungary and Poland survive an autocratic majority? Hardly. Hungary and Poland seem to be lost for liberal and democratic constitutionalism. At least for the time being, the next question is how democratic constitutionalism can prevent an autocratic majority. The task is to make it difficult for an autocratic parliamentary majority to capture the institutions of critique and control of government and to undermine separation of powers.

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12 December 2018

No Case for Legal Interventionism: Defending Democracy Through Protecting Pluralism and Parliamentarism

Being a democrat means accepting that the law is not a very durable sword against authoritarianism. Democratic law bends and submits to the majority. When push comes to shove, it lacks the capacity to defy anti-democratic, authoritarian majorities. Of course, this does not mean that legal mechanisms and instruments are meaningless in this context. They can work against and impede the rise of anti-pluralist, illiberal and anti-democratic political movements. But it is important to acknowledge that legal interventions and prohibitive measures that target anti-liberal, anti-democratic political platforms also pose risks. They may undermine what they are supposed to protect: a free and egalitarian political process that is based on open political competition, pluralism and a free public discourse.

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11 December 2018

Constitutional Resilience to Populism: Four Theses

Let us make a plea for modesty. Constitutional democrats need to be clear-eyed and realistic about what good constitutional design can do. We need to steer a middle course between constitutional idealism and nihilism. Constitutional idealists argue that thoughtful and intelligent constitutional design can largely eliminate the risk posed by populism; constitutional nihilists respond by arguing that there is little, if anything, that constitutional design can do in the face of the populist challenge that secures victory at the ballot box and captures the state from within.

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10 December 2018

How to Abolish Democracy: Electoral System, Party Regulation and Opposition Rights in Hungary and Poland

When it comes to Poland and Hungary, everyone is talking about the judiciary, about the independence of the courts, about the rule of law. But hardly anyone talks about parliaments. Yet they are at the heart of our democracies. And they are no less at risk. This became clear in the third panel of our workshop, which dealt with the electoral system, party regulation and opposition rights in Hungary and Poland. What may sound technical at first glance are surprisingly effective instruments in the hands of autocrats. It is precisely with these instruments that the governments of both countries have set the course for a “democracy” that primarily benefits the ruling parties and undermines political plurality.

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Europe’s Shameful Silence – An Open Letter to EU Leaders from Jean Monnet Chairs

In tomorrow's Council meeting the CEU eviction from Hungary will be a point of discussion. But what is required is taking some action. An open letter to Presidents Juncker, Tajani, and Tusk.

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09 December 2018

“Constitutional Resilience – How Can a Democratic Constitution Survive an Autocratic Majority?”: Freedom of Speech, Media and Civil Society in Hungary and Poland

Freedom of speech, media freedom and the freedom of civil society are the lifeblood of democracy. As far as the threats to freedom of speech, media and civil society are concerned, from a normative perspective, the problems of Hungary and Poland are decidedly not external to western democracies. The question arises of how resilient constitutions are or can be made in this matter, whereby political viewpoint discrimination takes a center role in the conetxt of not only constitutional resilience but also our European values.

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08 December 2018

How Can a Democratic Constitution Survive an Autocratic Majority? A Report on the Presentations on the Judiciary

European institutions and governments have come in for a lot of critique over the past few years. Sometimes such critiques have seemed unfair and hypocritical, in particular where those who criticize are no role models either (e.g. the European Union). And judging on a case-by-case basis, some the actions of the Polish or Hungarian governments seem perhaps not that extraordinary. Yet, once we look at the whole, a different picture emerges. As Tom Ginsburg and Aziz Huq have argued in their recent book How to Save a Constitutional Democracy, democracies can erode where we see changes with regard in the three fields key to preserving democracy: free and fair elections, the sphere of public discourse and the rule of law and the institutions enforcing it, i.e. courts and the administration. In Hungary and Poland, we see changes in all of these areas and this should worry us.

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07 December 2018

Laws, Conventions, and Fake Constitutions

Does pure majoritarian decision making have intrinsic value or offer better consequences for society? The case of Hungary is not isolated but is an integral part of a global phenomenon. In contrast with earlier waves of democratization that spread across the globe, more recent tendencies have led to the disintegration of democracies. Not only Hungary and Poland (two EU Member States), but also Russia (probably the first regime of this kind), and many other countries from Azerbaijan to Venezuela epitomize this phenomenon, in which the country in question adopts — apparently in a democratic manner — a legal transformation that moves it ever further from, rather than toward, democratic principles. Given that today democracy counts solely as a legitimate constitutional system, the most salient new feature is that authoritarianism must play at being democracy.

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Beyond Electoral Mandates—Oversight and Public Participation

Those who win elections want to remain in power after the next election. They have an incentive to undermine the credibility of the opposition and to use the tools of political power to do so. Incumbents who aggrandize power and demonize opponents can produce situations where office holders are less and less threatened by credible organized opponents. The opposition, in turn, seeks to gain power not only by espousing alternative policies but also by questioning the integrity and competence of incumbents.

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06 December 2018

Constitutional Resilience

Resilience of a body in general describes the ability to cope with an attack on its immune system. What is undisputed in psychology or biology is also valid for legal bodies, in particular for states. The term “constitutional resilience” obviously refers to the abilities of constitutions to cope with attacks and in the end to cope with a real crisis. In searching for answers on what constitutional resilience is, this article asks three questions: Where are the vulnerable parts of a democratic state governed by the rule of law? How can one protect the vulnerability of the state or some of its features? If vulnerable parts of a Constitution are properly protected – are the democratic state and its constitution safe?

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How populist authoritarian nationalism threatens constitutionalism or: Why constitutional resilience is a key issue of our time

The problem with movements and parties spearheaded by “populist” leaders such as Putin, Erdoğan, Orbán, Kaczyński or Trump is not that they happen to embrace more nationally focused policies that metropolitan elites widely condemn as unjust, ineffective or otherwise misguided. Nor is the problem that they embrace a confrontational political style and uncouth rhetoric at odds with the mores of reflexively enlightened society in political capitals across liberal constitutional democracies. Neither of those features would constitute a constitutional threat justifying sustained reflections on constitutional resilience. The problem with electoral successes of populist authoritarian nationalists is that they pose a fundamental threat to liberal constitutional democracy.

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Introduction: Constitutional Resilience and the German Grundgesetz

What lessons does the plight of the Polish and the Hungarian democracy hold for a seemingly stable constitutional state like Germany? How resilient would the German constitutional setup turn out to be in the case of an authoritarian majority taking and successfully holding on to power? What kind of legal or institutional changes may be helpful to make that event less likely and/or less hard to prevent? These were the questions we aimed to address in a debate jointly organized by Verfassungsblog and WZB Center for Global Constitutionalism, generously supported by Stiftung Mercator.

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05 December 2018

The CEU Leaves – Hungarian Students are Left in the Lurch

For 27 years Central European University has operated in Hungary’s capital. That era has come to an end. The forced move of the CEU to Vienna signals to Hungarians and other citizens in illiberal democracies that vulnerability is their future. They are left to the wayside by the international community, abandoned by the European Union, and left questioning who will ever defend liberal-democratic values in practice.

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22 November 2018

Europe’s Rule of Law Dialogues: Process With No End in Sight

The cause for concern is not that violators of the rule of law are strategic political actors or that they are disingenuous. Rather, the real problem is the unspoken premise on the basis of which defenders of the rule of law are more and more inclined to accept these developments as the very features of the EU’s rule of law safeguards. This acceptance is based on the flawed premise that so long as a procedure is in place one cannot really do more to defend the rule of law.

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12 November 2018
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Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism

Regrettably, we need to add the Council’s Legal Service to the list of key EU actors that seem intent on ignoring the existential threat to the Union posed by the spreading rule of law rot amongst EU member governments. In a (non-public) opinion on the proposed regulation of the Commission to create rule of law conditionality in the multi-annual financial framework adopted on 25 October 2018, the CLS indeed put forward multiple unpersuasive legal arguments to claim that the Commission’s proposal cannot be adopted. With this opinion, the CLS is advising the Council to actually prevent other institutions of the EU from doing their job to uphold and defend the set of common values on which the EU is based.

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31 October 2018

What Being Left Behind by the Rule of Law Feels Like, Part II

By now it must be clear to all that the Hungarian and Polish governments do have a plan that is built on staying within the Union, and changing it from the inside, (ab)using its institutions, resources and weaknesses to their own benefit. Every round and every step where European institutions falter in preventing moves to this effect is an opportunity for the offending member states to pursue their strategies even further.

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Guilty of Homelessness – The Resurgence of Penal Populism in Hungary

In Hungary, “residing in public spaces as habitual dwelling” constitutes a petty offence punishable by community service work or confinement. Even though the constitution had been amended to provide a basis for that, it is not inconceivable that the criminalization of being homeless is found unconstitutional.

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29 October 2018

What Being Left Behind by the Rule of Law Feels Like, Part I

On October 25, 2018 Central European University (CEU) made international news again. President and Rector Michael Ignatieff announced that CEU is moving to Vienna, unless the Hungarian government makes progress by December 1, 2018 on the international agreement it is meant to sign with the State of New York under Hungarian law. In the last few hours many readers of this blog, friends and colleagues, took to asking how I felt about this. Disappointed, frustrated – but most of all: betrayed.

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26 October 2018

Expanding the Franchise – another Sleight of Hand by the Hungarian Government?

The Hungarian government plans to expand the right to vote in the upcoming European elections to Hungarians living outside the EU. Is the aim of this plan simply to comply with EU law? Or is this another part in the long history of Fidesz trying to manipulate the franchise in their favour?

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23 October 2018

Constitutional Pluralism between Normative Theory and Empirical Fact

It has been recently floated in legal academia and the blogosphere that it is high time for constitutional pluralism to bow out of the European scene. The reason? It has been alleged to be (1) “fundamentally flawed and unsustainable” for allowing the application of EU law to be selective and unequal and (2) prone to abuse by autocrats, as demonstrated by the ongoing dismantling of democracy and the rule of law in Hungary and Poland where national (“constitutional”) identity is invoked all too often to justify patently illiberal policies. Is constitutional pluralism really to blame? What is this beast anyway?

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02 October 2018

Executive and Legislative Organs of Hungary Disobey Court Rulings

Freedom of information is a heavily used tool of journalists and NGOs in Hungary, and a right protected by the courts and the Constitutional Court – but in some cases, even in very high profile cases, the process stops there. The judgement is not enforced, and the right to know remains theoretical and illusory, rather than practical or effective. Enforcement is increasingly eroded, which demonstrates the weakness of the Hungarian rule of law state.

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18 September 2018
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The Four Elements of the Autocrats’ Playbook

There is truth in the old maxim proclaiming the imperative to try to get to know your enemies well. We outline four key techniques deployed by the autocratic regimes in Poland and Hungary in order to consolidate the constitutional capture and massive assault on European values and take a look at some of the elements of each of the four.

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17 September 2018

Beyond the Spectacle: The European Parliament’s Article 7 TEU Decision on Hungary

Emotions were high and voices loud while and after the European Parliament adopted its decision to trigger an art. 7 TEU procedure against Hungary this week. Once the dust settles, it might be helpful and disillusioning to look at the possible consequences, the collateral damages and the side-effects of the European Parliament's art. 7 TEU decision.

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10 September 2018
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How to Stop Funding Autocracy in the EU

The EU finds itself in the perverse situation of providing some of the largest transfers of funds precisely to those governments who most prominently thumb their nose at its democratic and rule-of-law norms. The legal debate about this misses the fact that the EU already has a sufficient legal basis to suspend the flow of funds to states in which rule-of-law norms are systematically violated. The real problem to date has not been the lack of adequate legal tools, but the lack of political will on the part of the European Commission to use the tools that already exist.

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29 June 2018

Fidesz and Faith: Ethno-Nationalism in Hungary

“The protection of Hungary’s self-identity and its Christian culture is the duty of all state organizations” says one of the new provisions that were adopted on 20 June to change the country’s Fundamental Law of 2011. Besides its potential to limit fundamental rights, what are the possible consequences of this constitutional change, in legal, cultural and political terms?

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08 June 2018

The Hungarian Constitutional Court betrays Academic Freedom and Freedom of Association

On 5 June the Hungarian Constitutional Court issued two injunction decisions, almost identical in their texts, which suspend the constitutional review procedures against two laws enacted in early April, 2017 by the Hungarian Parliament, outside the normal legislative process. The first, an amendment to the Act on National Higher Education known as „Lex CEU“ was challenged by a constitutional complaint, the second, the Act of the Transparency of Organizations Receiving Foreign Funds by 60 opposition MPs of the Hungarian Parliament with an abstract norm control notion. The handling of these two petitions by the Constitutional Court was odd in more than just one respect.

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28 May 2018
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“A Bad Workman always Blames his Tools”: an Interview with LAURENT PECH

Constitutional capture in Poland and Hungary and what to expect from the European Commission, the Council and the Court of Justice: an interview with Laurent Pech.

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18 May 2018

There is No Such Thing As a Particular „Center and Eastern European Constitutionalism“

After a new landslide electoral victory by the Hungarian Prime Minister Viktor Orbán, a fresh perspective on constitutional developments in Central and Eastern Europe (CEE) has started taking shape. It could be described as constitutional appeasement. The argument goes that given a widespread popular support for the constitutionally backsliding regimes in Hungary, Poland as well as elsewhere, we should start examining our own theoretical premises from which we have been observing and evaluating the developments in CEE. Perhaps, there is not everything wrong with CEE political and institutional developments?

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14 May 2018

Judges under Attack in Hungary

Judges seem to irritate the Hungarian Prime Minister Viktor Orbán who likes to talk officially about “the judicial state” and irresponsible judges. Despite many problems with judicial autonomy and practice, judicial independence itself has remained relatively intact from overt political influence so far. More precisely: the governing party and its friends could not completely rely on the courts to get favorable decisions. For example, governmental bodies have regularly lost cases initiated by civil legal organizations for the release of public information. That, however, might change after Orbán’s latest electoral victory.

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12 April 2018

The Charming Smile of Viktor Orbán

The political campaign leading up to the recent Hungarian general elections was deeply flawed. One of the constitutionally suspicious steps of the party in power (Fidesz) was to blur the lines between the official communication of the Government (as a constitutional organ) and the campaign messages of Fidesz (as a candidate party). Unfortunately, none of the state institutions involved in the adjudication of the case could adequately address the constitutional issue.

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31 March 2018
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“Only Fidesz” – Minority Electoral Law in Hungary

Hungary is holding parliamentary elections on 8th April. While the systemic deficiencies of the Hungarian electoral system have received international attention, the present Hungarian regulation and the practice of minority and extraterritorial citizen voting also create several possibilities for abuse. Hidden behind the façade of multiparty elections, nation building and minority rights, the current system serves as an instrument to keep the government in power.

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12 February 2018

The Emerging Trend of Parliamentary Performance: Freedom of Expression in the Hungarian National Assembly

Laurent Fabius, the former President of the French National Assembly, once called the parliament, rather poetically “a theatre of shadows”. It was a harsh criticism of the mostly formal and insignificant role of parliament in the legislative process under the excessive dominance of the Executive. A few years ago Hungarian opposition MPs decided to turn their own “theater” into something more meaningful, or at least more amusing. They have been using all kinds of creative techniques to express their opinion in the hemicycle. It seems, however, that the Speaker and the parliamentary majority do not really appreciate this new trend of performing arts for they constantly impose heavy penalties on the MPs. This practice is a reminder that the principle of parliamentary autonomy needs to be reconsidered in light of contemporary political realities.

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11 January 2018

Memory Wars of Commercial Worth – The Legal Status of the Red Star in Hungary

With this blogpost for the T.M.C. Asser Institute – Verfassungsblog joint symposium, I would like to draw attention to another facet in the legal governance of historical memory, that regarding the use of totalitarian symbols of the past. This issue remains particularly pertinent in the region of Central and Eastern Europe in parallel to the widely discussed decline in the rule of law.   

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10 January 2018

Memory Politics in Hungary: Political Justice without Rule of Law

After the 1989-90 democratic transition, Poland and Hungary were the first to introduce the institutional framework of constitutional democracy and of transitional justice. For a number of reasons, including a lack of democratic traditions and constitutional culture, after the 2010 parliamentary elections, liberal constitutionalism became a victim of the authoritarian efforts of Viktor Orbán’s Fidesz party. In April 2013, the government as part of the Fourth Amendment to the Fundamental Law adopted Article U, which supplements detailed provisions on the country’s communist past and the statute of limitations in the body text of the constitution.

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13 October 2017

Academic Freedom in an Illiberal Democracy: From Rule of Law through Rule by Law to Rule by Men in Hungary

October 11, 2017, was supposed to be the day when the deadline for meeting the requirements of the notorious "Lex CEU" would expire. Two days afterwards, however, the Hungarian government announces to extend the deadline by a year – out of the blue. And that is not the only interesting thing that happened today.

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26 September 2017
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Mind the Gap! Schwierigkeiten der Rechtsstaatlichkeit in der EU

Seit Ende des Kalten Krieges haben sich sowohl internationale Organisationen als auch nationale Regierungen den Grundsätzen der Rechtsstaatlichkeit verschrieben - allerdings oft nur in Form von Lippenbekenntnissen. Welche Probleme resultieren aus diesem Vorgehen in der EU und vielleicht noch wichtiger: Was sollte dagegen unternommen werden?

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08 September 2017
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Hungarian Constitutional Identity and the ECJ Decision on Refugee Quota

The outcome of the lawsuit launched by the Hungarian Government against the EU Council’s decision on compulsory relocation of asylum seekers before the European Court of Justice (ECJ) took no-one by surprise, neither in Budapest nor elsewhere. Some may have hoped that the complaint would succeed legally, but nevertheless it has always been primarily a part of a well-devised political strategy based on the idea of national identity as a concept of constitutional and EU law.

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07 September 2017

The EU as the Appropriate Locus of Power for Tackling Crises: Interpretation of Article 78(3) TFEU in the case Slovakia and Hungary v Council

The CJEU’s judgment in Slovakia and Hungary v Council of 6 September 2017 raises important instutional questions. As the Court implicitly recognises the EU as the appropriate forum for taking effective action to address the emergency situation created by a sudden inflow of third country nationals, it adopts its tendency towards purposive and effectiveness-oriented jurisprudence to asylum law.

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24 July 2017

Art. 7 EUV im Quadrat? Zur Möglichkeit von Rechtsstaats-Verfahren gegen mehrere Mitgliedsstaaten

Ungarns Veto blockiert einen Beschluss nach Art. EUV, Polen das Stimmrecht im Rat zu entziehen, und umgekehrt. Lässt sich das Veto umgehen, indem ein Verfahren gegen beide Mitgliedsstaaten gleichzeitig eingeleitet wird?

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16 July 2017

For Central Europe’s Illiberal Democracies, the Worst is yet to Come

Next week the Polish parliament will most likely pass a bill sponsored by the ruling Law and Justice party, introducing a total overhaul of the country’s judicial system. The tenures of all judges sitting on the Supreme Court, Poland’s highest judicial instance, will be immediately expired, while their successors will be installed by the justice minister. In other words, the members of the last judicial body standing in the way of Law and Justice eradicating tripartite division of powers and court independence will now be appointed by a politically tainted minister.

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07 July 2017

Lex CEU: On the Commission’s Refusal to Disclose its Letter of Formal Notice in the Name of Mutual Trust

This post will offer a brief account of my unsuccessful attempts to gain access to the Commission’s letter of formal notice addressed to Hungary on 26 April 2017, that is, the letter adopted by the Commission in response to the adoption by the Hungarian authorities of what has become known as the Lex CEU. Before offering a critical assessment of the Commission’s reasoning, a brief account of the relevant context will be offered. This post will end with some general remarks on the EU’s repeated failed attempts to prevent illiberal not to say authoritarian regimes from consolidating within the EU.

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29 April 2017

Much Ado About Nothing? Legal and Political Schooling for the Hungarian Government

After his infamous law against the Central European University, the EU Commission has announced a treaty infringement procedure against Hungary. That will probably be of limited help against the systemic threat to the rule of law in Viktor Orbán's state. Politically more effective might be the pressure exerted by the European People's Party.

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05 April 2017

The Return of the Sovereign: A Look at the Rule of Law in Hungary – and in Europe

The Hungarian law makers have enacted a law that will make the operation of foreign-funded universities all but impossible, and aim to do the same to foreign-funded NGOs. These measures fail to meet even the most basic features of how legal rules are envisioned in a rule of law framework. The carefully crafted new Hungarian laws use the cloak of national security to stab the rule of law, as understood in Europe, in the heart.

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31 March 2017

Legally sophisticated authoritarians: the Hungarian Lex CEU

Contemporary authoritarian leaders understand that in a globalized world the more brutal forms of intimidation are best replaced with more subtle forms of coercion. Therefore, they work in a more ambiguous spectrum that exists between democracy and authoritarianism, and from a distance, many of them look almost democratic. They take advantage of formalistic legal arguments against their enemies. Similarly, the new draft law of the Hungarian government also uses legal tricks to force the Central European University to cease operation in Budapest.

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10 January 2017

The Hungarian Constitutional Court and Constitutional Identity

Ever since the 2010 parliamentary elections Hungary has set off on the journey to became an ‘illiberal’ member state of the EU, which does not comply with the shared values of rule of law and democracy, the ‘basic structure’ of Europe. The new government of Viktor Orbán from the very beginning has justified the non-compliance by referring to national sovereignty, and lately to the country’s constitutional identity guaranteed in Article 4 (2) TEU. This constitutional battle started with the invalid anti-migrant referendum, was followed by the failed constitutional amendment, and concluded in early December last year by a decision of the Constitutional Court, in which the packed body in a binding constitutional interpretation rubber-stamped the constitutional identity defense of the Orbán government.

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21 December 2016

A Game of Values: Particular National Identities Awaken in Europe

The EU’s legitimacy is thin and this weakness is reflected in its impotence in the face of the drift towards authoritarianism in Central and Eastern Europe. It remains to be seen whether such an authoritarian turn as the Hungarian can happen in old democracies and if their institutions are strong enough to limit the effects of global processes which are shaping the national identities of societies and the impact of Member States on the shared EU framework.

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11 November 2016

National Constitutional Identity in the European Constitutional Project: A Recipe for Exposing Cover Ups and Masquerades

On November 8, 2016 the Hungarian Parliament did not adopt the Seventh Amendment of the Fundamental Law seeking to protect Hungarian constitutional identity in the face of European imposition. The Seventh Amendment was meant to cover up the minor scratch on the Government’s pride caused by lack of popular support for its relentless fight against the EU. Although the Amendment did not pass, supporters of European constitutional projects cannot afford to sit back and relax.

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24 October 2016

Can Poland be Sanctioned by the EU? Not Unless Hungary is Sanctioned Too

Hungary has announced to block any Article 7 sanctions that the EU might propose against Poland. Why should Poland back down when nothing will come of standing up to the EU? Given Polish intransigence, the Commission may be tempted to stall for time or to retreat, which would be disastrous for the rule of law in the European Union. But the power to levy Article 7 sanctions can be restored. The Commission should do now what it should have done long ago. It should begin by triggering Article 7 (1) not only against Poland, but against Hungary as well.

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04 October 2016

The Invalid Anti-Migrant Referendum in Hungary

After an unprecedented and partially illegal attempt to bring Hungarian voters in line against the EU refugee quota, the referendum launched by the government is invalid, as only around 40 percent turned out to vote. This was an own goal made by the Orbán government, which after overthrowing its predecessor as a result of a popular referendum made it more difficult to initiate a valid referendum.

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30 September 2016

Warum das Flüchtlingsquoten-Referendum in Ungarn so eine erzfaule Sache ist

Von seinem Volk will Viktor Orbán wissen, ob sie die EU-Flüchtlingsquoten gut finden. Das sieht demokratisch aus, ist in Wahrheit aber genau das Gegenteil.

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22 June 2016

The Hungarian Constitutional Court’s case with the ECHR: an ambivalent relationship

Hungary was the first country in the post-Soviet bloc that joined the Council of Europe and ratified the European Convention on Human Rights and this remains a matter of national pride. While the Convention is perceived as a yardstick in human rights protection that may not be circumvented, still lively debate surrounds the authority of the case-law of European Court of Human Rights. The recent constitutional reform has left the status of the Convention largely untouched. The Convention still enjoys a supra-legislative rank: it is subordinated to the Fundamental Law but is superior to all other pieces of legislation.

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12 April 2016

Anti-Roma-Märsche in Ungarn: Staat muss Anzeichen auf Hasskriminalität nachgehen

Die Neonazi-Aufmärsche von Gyöngyöspata 2011 haben Ungarn eine Verurteilung vor dem EGMR in Straßburg eingebracht – und den Staaten Europas die klare Ansage, Hasskriminalität als HASSkriminalität zu verfolgen und die Augen vor rassistischen Motiven von Straftaten nicht zu verschließen.

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05 April 2016

Menschenwürde schlägt Anerkennungsgrundsatz

Europa fußt auf Vertrauen. Aber was, wenn manche europäischen Mitgliedsstaaten aufhören dieses Vertrauen zu verdienen? Ist die Vertrauenswürdigkeit ihrerseits Vertrauenssache? Angesichts der Mir-doch-egal-Haltung, die einige mittel- und osteuropäische Regierungen gegenüber dem Europarecht und den fundamentalen Verfassungsgrundsätzen Europas mittlerweile an den Tag legen, ist das keine theoretische Frage, sondern eine, von der Europas Zukunft abhängt. Heute hat der Europäische Gerichtshof sie auf eine Weise beantwortet, die mir einen Stein vom Herzen fallen lässt.

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17 March 2016

Hungary’s Struggle: In a Permanent State of Exception

The Hungarian government has called for a referendum on EU relocation quota plan and declared a “nationwide migrant crisis”. The justification given by the government for these measures was the “massive immigration” which “endangers the jobs of Hungarians and redraws Hungary’s cultural and religious identity”. The argument went that, due to a “migrant crisis” the Hungarian government needed a greater room for maneuvre, not limited by constitutional constraints, in order to manage the crisis. This argument presupposes that, as a result of the migrant crisis, Hungary has ended up in a state of exception, when constitutional guarantees have to be limited or suspended; essential powers have to be concentrated in the hands of the prime minister, until the crisis is overcome.

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14 March 2016

Poland, Hungary and Europe: Pre-Article 7 Hopes and Concerns

The European Commission’s opening of a rule of law dialogue with Poland in the new pre-Article 7 format developed last year is an important test of European constitutionalism both on the EU and on the Member State level. The mechanism is meant to address systemic violations of the rule of law in several steps, in the format of a structured dialogue. The new procedure does not preclude or prevent the launching of an infringement procedure by the Commission. The probe into Poland’s measures against the Constitutional Tribunal and its new media regulation is expected to test the viability of an EU constitutional enforcement mechanism against a Member State.

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28 February 2016

EU Law and Politics: the Rule of Law Framework

A voice from within Hungary's ruling party: György Schöpflin, Fidesz MEP and former politics professor from UCL, on the EU Commission's rule of law Framework, its activation against Poland and its use as a legal and a political tool.

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17 February 2016
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Hitting where it hurts the most: Hungary’s legal challenge against the EU’s refugee quota system

Following the drama and confusion on the South-Eastern borders of the EU in the hot summer of 2015, the EU and the Member States adopted a Council Decision which introduced a quota system for the distribution and settlement of asylum seekers and migrants. Its aim was to establish a regime for the fair sharing of burdens among the Member States. This quota system was opposed and subsequently challenged before the EU Court of Justice by Hungary, one of the worst affected EU Member States, by which it affirmed its position as a Member State which regards the Union primarily as an arena for vindicating its national interests, and which is not hesitant to prioritise its own interests, mainly in areas which fall within competences retained by the Member States, over those of other Member States and of the Union.

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28 January 2016

“2004 EU Accession” as a Founding Moment? Of lost opportunities, alienating constitutionalism and vigilant courts

Much as the liberal elites in Poland are appalled by the ruthlessness of the attack on the Constitutional Court and the Polish rule of law, they are the ones to be blamed for the civic passivity that continues to define post-transition societies in general. The truly reformative potential of 1989, and then 2004, was lost when elites neglected the importance of connecting with the “real” people beyond the magic of the big-bang moments of 1989 and 2004. This "alienating constitutionalism" is one of the dark sides of 2004 Founding Moment, one that nobody really saw coming at the time of the EU Accession. Should the citizenry start embracing and defending the Court as "my own", the truly powerful legacy of the 2004 Founding Moment would be discovered.

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12 January 2016

Straßburg nimmt den Kampf gegen Überwachungsstaat auf

Die Europäische Menschenrechtskonvention schützt uns davor, dass unser Staat zu einem Überwachungsstaat mutiert. Das zumindest ist der Anspruch, den der Straßburger Menschenrechtsgerichtshof vor wenigen Wochen in seiner epochalen und in der deutschen Öffentlichkeit viel zu wenig wahrgenommenen Entscheidung Sacharow v. Russland aufgestellt hat: Wenn Polizei oder Geheimdienst die Telefon- und Internetkommunikation von buchstäblich jedem überwachen darf, dann darf auch buchstäblich jeder dagegen klagen. Und wenn es an hinreichend robuster Kontrolle dieser Überwachung fehlt, dann verletzt sie buchstäblich jeden von uns in unserem Recht auf Privatsphäre. Vielleicht hatte die vergleichsweise geringe Resonanz auch damit zu tun, dass es ein russischer Fall war. Aber heute hat es mit der Kammerentscheidung Szabó v. Ungarn den ersten EU-Staat erwischt. Es wird nicht der letzte bleiben.

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26 September 2015

Judging Fears in Refugee Crisis

The current refugee crisis in the heart of Europe recalls the crucial contrast between rational worry and phobia. The historic decision of the US Supreme Court in the case of United States v. Schwimmer may help us understand the nature of fear in constitutional theory and practice.

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12 June 2015

Kuscheln mit Orbán, oder: Gentlemen, in fact, do disagree about facts

Ein Expertenausschuss der DGAP unter Leitung von Klaus von Dohnanyi will die kritische Berichterstattung vieler Medien über Ungarn mit Fakten widerlegen. Das misslingt und wirft die Frage auf, woher die Neigung vor allem vieler altgedienter Sozialdemokraten rührt, jeden noch so empörenden Angriff auf Menschenwürde, Demokratie und/oder Rechtsstaatlichkeit zu etwas herunterregeln zu wollen, was sich mit genügend Sachkenntnis und Dialogbereitschaft schon irgendwie aus der Welt schaffen lässt.

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01 June 2015

Junckers Scheidungs-Drohung gegen Ungarn: Noch nicht mal lustig

Jean-Claude Juncker hat in den letzten Wochen beachtliche Erfolge erzielt beim Verbreiten des Eindrucks, er sei bereit und in der Lage, die Europäische Union vor dem autoritären ungarischen Regierungschef Viktor Orbán zu beschützen. Sollte dieser die Todesstrafe in Ungarn einführen, so Juncker im SZ-Interview, so wäre dies ein "Scheidungsgrund". Was das heißen soll, erklärt er nicht (und es fragt auch keiner nach). Stattdessen betont er, dass seine Angewohnheit, Orbán mit dem Spitznamen "Diktator" zu begrüßen, als "Freundschaftsbeweis" zu verstehen sei.

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07 May 2015

Viktor Orbán’s rampage to attract more far right voters

The latest dangerous ideas of PM Orbán and his government to reintroduce the death penalty in Hungary, to legitimate the disclosure of immigrants through the foreseeable result of a ‘national consultation’, and to legalize the segregation of Roma in public education further undermine the democratic values of Article 2 of the Treaty of the European Union. This new wave of anti-rule-of-law populism is a direct consequence of the continuous decline of the governing party’s popularity.

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25 February 2015

Does property protection entail a right to obtain social benefits under the ECHR?

It goes without saying that a supranational court’s engagement with national social policy is a sensitive endeavour. This is all the more so when the norms this court is protecting are of a ‘classic’, rather than of a socio-economic kind. In the recent case of Béláné Nagy v. Hungary the European Court of Human Rights seemingly recognises a right to obtain social security benefits under Article 1 of Protocol No. 1 to the European Convention on Human Rights, which contains the right to protection of property. The case was decided by a three to four vote and hence might be referred to the Grand Chamber. Yet it is especially the strong and diverging conclusions of the majority and the minority on a sensitive issue like the protection of social security qua property rights issue, that make this judgment worth elaborating upon.

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08 October 2014

Hungarians outside Hungary – the twisted story of dual citizenship in Central and Eastern Europe

In 2010, Hungary amended its Citizenship Act to pave the way for a preferential naturalisation of Hungarians living abroad. This was met with great alarm among Hungary’s neighbours: As a consequence of the Trianon Peace Treaty in the aftermath of World War I, by which Hungary lost large swaths of its territory, a considerable part of the citizenship of Romania, Slovakia, Serbia, Ukraine and other states nowadays consists of ethnic Hungarians. Four years after, tensions between Hungary and its neighbours with respect to dual citizenship are still palpable, since the number of new Hungarian citizens increases continually and already exceeds half million.

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16 September 2014

Von wegen Würde des Bundestages: Demo im Plenarsaal ist Meinungsfreiheit

Dass Bundestagspräsident Norbert Lammert ganz schnell den Humor verliert, wenn seine Abgeordneten drunten im Plenarsaal ihre politische Meinung auf andere Weise kundtun als durch Redenhalten und Zwischenrufen, ist bekannt: Mal fliegen Parlamentarier raus, weil sie bei der Debatte um das Afghanistan-Mandat Schilder mit den Namen der Kundus-Opfer hochhalten, mal, weil sie auf ihren T-Shirts ihren Protest gegen Stuttgart 21 anmelden. Alles, was wie eine organisierte Demo aussieht, wird als Angriff auf die "Würde des Hauses" gewertet und ohne viel Federlesens unter zustimmendem Nicken der veröffentlichten Meinung unterbunden. Damit hat Lammert damit womöglich gegen die Europäische Menschenrechtskonvention verstoßen. Das legt zumindest ein heute verkündetes Urteil des EGMR in Straßburg nahe.

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28 August 2014

Illiberal Democracy and Beyond in Hungary

Hungary's Prime Minister Viktor Orbán describes his country as "illiberal state", citing as role models authoritarian regimes like Putin’s Russia and dictatorial governments like China. As with citizens in any other nation-state, Hungarians certainly have the right to oppose the development of a liberal political system, if they are willing to accept certain consequences such as parting from the European Union and the wider community of liberal democracies. However, this conclusion must be reached through a democratic process, unlike the constitution making that took place in 2011, when Hungary’s leaders neglected to consult the people on their opinions about the very nature of the constitution.

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03 June 2014

Macht sich die Deutsche Telekom zu Orbáns Handlanger beim Abbau der ungarischen Demokratie?

Offenbar findet kurz nach den Wahlen, die Viktor Orbán und der FIDESz-KDNP-Koalition erneut eine Zweidrittelmehrheit beschert haben, ein regelrechter Crackdown gegen die verbliebene unabhängige Presse statt. Und ausgerechnet unsere eigene Deutsche Telekom AG muss sich dabei einige unangenehme Fragen nach ihrer Rolle dabei gefallen lassen.

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Expelling dissent: On account of the ECtHR judgment in Baka v Hungary

The European courts have been rather active in finding Hungary in violation of European constitutional and human rights minimum standards in April and in May 2014. In the most recent judgment in this line of cases, Baka v Hungary, the ECtHR found that the last chief justice of the Hungarian Supreme Court, András Baka, had been removed from office through constitution-making before the end of his term due to his criticism of the government’s judicial reforms. The Baka case is symptomatic of a fundamental shortcoming of Hungary’s new constitutional reality: the suppression and expulsion of dissent from the domestic political sphere. Sadly, the timing of the ECtHR’s judgment is perfect, as it comes at a time when the government is taking intense legal steps and other measures silence dissenting voices even further.

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14 April 2014

Legal but not Fair: Viktor Orbán’s New Supermajority

Viktor Orbán and his Fidesz party coasted to a clear victory in last weekend’s Hungarian election, as expected. The governing party got 45% of the vote, but the new “rules of the game” turned this plurality vote into two thirds of the seats in the parliament. A continuing two-thirds parliamentary majority allows Orbán to govern without constraint because he can change the constitution at will. But this constitution-making majority hangs by a thread. Orbán’s mandate to govern is clear because his party got more votes than any other single political bloc. What is not legitimate, however, is his two-thirds supermajority. Orbán was certainly not supported by two-thirds of Hungarians – nowhere close. In fact, a majority gave their votes to other parties. Orbán’s two-thirds victory was achieved through legal smoke and mirrors. Legal. But smoke and mirrors. Viktor Orbán and his Fidesz party coasted to a clear victory in last weekend’s Hungarian election, as expected. The governing party got 45% of the vote, but the new “rules of the game” turned this plurality vote into two thirds of the seats in the parliament. A continuing two-thirds parliamentary majority allows Orbán to govern without constraint because he can change the constitution at will. But this constitution-making majority hangs by a thread. Orbán’s mandate to govern is clear because his party got more votes than any other single political bloc. What is not legitimate, however, is his two-thirds supermajority. Orbán was certainly not supported by two-thirds of Hungarians – nowhere close. In fact, a majority gave their votes to other parties. Orbán’s two-thirds victory was achieved through legal smoke and mirrors. Legal. But smoke and mirrors.

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10 April 2014

Collective Constitutional Learning in Europe: European Courts Talk to Hungary (Again)

Both the CJEU and the ECtHR have handed down decisions against Hungary, on the same day and only two days after the Hungarian national elections in which the party of PM Viktor Orbán, FIDESz, won an overwhelming majority. While the CJEU judgment on the data protection ombudsman is spectacularly technical, the ECtHR judgment on the 2011 church law is much more comprehensive. Both judgments bring sobering and timely reminders to a freshly reelected Hungarian government on the shortcomings of Hungary’s reinvented constitutional framework. At the same time, the two judgments can be read as a timely reality check on some key aspects of the Commission’s newly envisioned EU Framework for strengthening the Rule of Law. Both the CJEU and the ECtHR have handed down decisions against Hungary, on the same day and only two days after the Hungarian national elections in which the party of PM Viktor Orbán, FIDESz, won an overwhelming majority. While the CJEU judgment on the data protection ombudsman is spectacularly technical, the ECtHR judgment on the 2011 church law is much more comprehensive. Both judgments bring sobering and timely reminders to a freshly reelected Hungarian government on the shortcomings of Hungary’s reinvented constitutional framework. At the same time, the two judgments can be read as a timely reality check on some key aspects of the Commission’s newly envisioned EU Framework for strengthening the Rule of Law.

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08 December 2013

How to turn Article 2 TEU into a down-to-Earth provision?

Coming from such an established voice advocating the protection of rule of law at the national level, Kim Scheppele’s proposal definitely enjoys sufficient legitimacy to be taken very seriously. In what follows, I look at the “problem” of democracy (1.), the “problem” with bundling infringements (2.), the problem of determining the meaning of “values” (3.), and the problem with penalties (4.). I conclude that two problems are fictitious but two others are real.

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05 December 2013

Systemic infringement action: an effective solution or rather part of the problem?

Kim Lane Scheppele suggests a comprehensive, holistic approach to deal with prominent challenges to the basic principles of the European Union. I very much sympathize with this idea, but believe a purely legal approach in itself is not sufficient (and might even be counter-productive).

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15 July 2013

Guys with Guns vs. Guys with Reports: Egyptian and Hungarian Comparisons

Sind Fidesz und die Muslimbrüderschaft vergleichbare Phänomene? Gábor Halmai über Parallelen und Unterschiede zwischen Ägypten und Ungarn.

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05 July 2013

In Praise of the Tavares Report: Europe finally said No to Viktor Orbán

The Tavares Report, adopted by the European Parliament with a surprisingly large majority, provides a bill of particulars against the Hungarian 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.

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23 June 2013

The Idea of Democracy Protection in the EU Revisited

Im Umgang mit Mitgliedsstaaten, in denen Demokratie und Rechtsstaatlichkeit ins Rutschen kommen, zeigen sich EU-Kommission und EU-Parlament weniger hilflos und unentschlossen, als manche befürchtet hatten. Doch reicht solch punktueller Druck aus? Jan-Werner Müller berichtet über die jüngsten Entwicklungen in Brüssel und antwortet zum Abschluss des Verfassungsblogs-Symposiums "Ungarn - was tun?" auf die Kritiker seines Vorschlags, als unabhängige Instanz eine "Kopenhagen-Kommission" einzurichten.

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13 June 2013

The EU in its most serious crisis ever (and that’s not the Euro crisis)

Following the recent fascinating exchange in the ‘pages’ of the […]

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14 May 2013

Ungarn kann doch nicht ganz machen, was es will

Ungarns Verfassungspolitik, den Lesern dieses Blogs wohl vertraut, hat heute […]

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13 May 2013

The Crisis of Democracy in Hungary and Romania – Learning from Weimar?

Hungary’s political development under the Orbán government is by now […]

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08 May 2013

The Hungarian Dilemma from a Pluralist Perspective

The constitutional and political developments in Hungary in the last […]

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08 April 2013

Sinn und Unsinn einer Kopenhagen-Kommission

1. Versäumnisse Von den politischen Akteuren wird eingeräumt, dass es […]

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07 April 2013

Opening the enforcement of EU fundamental values to European citizens

Over the last two years, the adoption, implementation and, more […]

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27 March 2013

Supremacy of the EU Charter in National Courts in Purely Domestic Cases

The European Union is not just a community based on […]

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25 March 2013

The EU Is More Than A Constraint On Populist Democracy

Jan-Werner Müller’s eloquent proposal on what the EU should do […]

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22 March 2013

Less Constraint of Popular Democracy, More Empowerment of Citizens

While I share Müller’s concern about the situation in Hungary […]

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21 March 2013

“What” versus “Who”: Europe’s Rule of Law Agenda Revisited

As we all know, observance of the “Rule of Law” […]

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13 March 2013

Die EU als wehrhafte Demokratie, oder: Warum Brüssel eine Kopenhagen-Kommission braucht

Kann es innerhalb der Europäischen Union eine Diktatur geben?  Vor […]

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Ungarn – was tun?

Am Montag hat das ungarische Parlament ein Paket von Verfassungsänderungen […]

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04 March 2013

Constitutional Revenge

One year ago, Hungary’s slide from a multiparty democracy into […]

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01 March 2013

“Die Krise ist ein Perpetuum Mobile”

Was sehen Sie vor sich, wenn Sie an Europa 2023 […]

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22 February 2013

Hungarian Ban Of Totalitarian Symbols: The Constitutional Court Speaks Up Again

Although the Hungarian government promised not to strike back after […]

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04 February 2013

Ungarns Verfassungsgericht: Das Imperium schlägt zurück

Das ungarische Verfassungsgericht, so scheint es, ist trotz aller Versuche […]

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15 January 2013

The Return of the Hungarian Constitutional Court

Hungary’s 2011 constitutional reform also brought along the reform of […]

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04 January 2013

Ungarn hat doch noch ein Verfassungsgericht

Das ungarische Verfassungsgericht ist nach der Beschneidung seiner Kompetenzen durch […]

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06 November 2012

Altersdiskriminierung: EuGH kippt Ungarns Justizreform

In Karlsruhe wird heute und morgen über fundamentale Verfassungsfragen verhandelt: […]

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30 October 2012

Ungarn, UK, USA: Wählen ist was für die besseren Leute

Eine Woche trennt uns noch vom Wahltag in den USA. […]

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16 October 2012

Keine Freizügigkeit für Staatsoberhäupter

László Sólyom ist ein Bürger der Europäischen Union und hat […]

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09 August 2012

How to Evade the Constitution: The Hungarian Constitutional Court’s Decision on Judicial Retirement Age, Part II

Part Two: “The System Remains” (Continued from Part 1: The […]

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How to Evade the Constitution: The Hungarian Constitutional Court’s Decision on Judicial Retirement Age, Part I

By KIM LANE SCHEPPELE Part One: The Decision On Monday […]

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12 July 2012

Romania In Hungary’s Footsteps: Different Victor, Same Strategy

By ANITTA M. HIPPER On January 1, 2012 with an […]

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11 July 2012

“Is it a dictatorship and a police state yet?” Scheppele and Halmai on current Hungarian constitutional politics

Ever since the sweeping election victory of Victor Orbán’s FIDESZ […]

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17 April 2012

Rescue Package for Fundamental Rights: Comments by MICHAELA HAILBRONNER

The Heidelberg proposal, with its suggestion of the adoption of […]

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03 April 2012

Rescue Package for Fundamental Rights: Further Comments by DANIEL HALBERSTAM

Peter Lindseth’s post directed at my own intervention on the […]

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22 March 2012

Rettungsschirm für Grundrechte: Anmerkungen von ANTJE WIENER

Auch wenn „Rettungsschirm“ nicht unbedingt das Wort des Monats ist […]

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06 March 2012

EU-Recht setzt Ungarns Isolation Grenzen (aber sehr, sehr weite)

EU-Mitgliedsstaaten müssen sich nicht vertragen. Aber ihr Streit darf nicht […]

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01 March 2012

Rettungsschirm für Grundrechte: Anmerkungen von MATTIAS KUMM

Ungarns Ministerpräsident Victor Orban und die von ihm kontrollierte Regierungspartei […]

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28 February 2012

Rescue Package for Fundamental Rights: Further Comments from PETER LINDSETH

It is a tribute to the thoughtfulness of the Heidelberg […]

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27 February 2012

Rescue Package for Fundamental Rights: Comments by RENATA UITZ

In order to full appreciate the Heidelberg proposal, I believe […]

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Rescue Package for Fundamental Rights: Comments by DIMITRY KOCHENOV

Armin von Bogdandy and his team have come up with […]

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24 February 2012

Rescue Package for Fundamental Rights: Comments by WOJCIECH SADURSKI

The Hungarian debacle is both a challenge and an opportunity […]

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23 February 2012

Rettungsschirm für Grundrechte: Anmerkungen von DANIEL THYM

Die Parallelen zwischen den Notoperationen zur Euro-Rettung und einer EuGH-Grundrechtsintervention […]

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22 February 2012

Rescue Package for Fundamental Rights: Comments by DANIEL HALBERSTAM

I welcome the Heidelberg proposal! Several years ago – long […]

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18 February 2012

Rescue Package for Fundamental Rights: Comments by PETER LINDSETH

I’d like to thank Alexandra, Max, and Christoph for inviting […]

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15 February 2012

Rettungsschirm für Grundrechte: Anmerkungen von ANNA KATHARINA MANGOLD

Die Heidelberger Forschergruppe um Armin von Bogdandy schlägt in ihrem […]

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Rescue Package For Fundamental Rights: Comments by PÁL SONNEVEND

The European Union could not be imagined without respect for […]

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Ein Rettungsschirm für europäische Grundrechte – dargestellt am Beispiel der Medienfreiheit

Von ARMIN VON BOGDANDY, MATTHIAS KOTTMANN, CARLINO ANTPÖHLER, JOHANNA DICKSCHEN, […]

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Rettungsschirm für Grundrechte: Ein Online-Symposium auf dem Verfassungsblog

Die Konstitution der EU wird bestimmt durch die Grundrechtslage in […]

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07 January 2012

Die Schande Ungarns ist auch unsere eigene

Menschenwürde, Freiheit, Demokratie, Gleichheit, Rechtsstaatlichkeit, Wahrung der Menschenrechte. Das sind […]

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06 January 2012

Ungarns Verfassung kinderleicht erklärt

ZDF Logo ist schon was Tolles.  

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20 December 2011

Ungarns Mediengesetz ist verfassungswidrig

Vor etwa einem Jahr ging den meisten von uns hier […]

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09 November 2011

Constitutional Iconography

Over at Hungarian Spectrum Eva Balogh has much fun with […]

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05 September 2011

Verfassungsaltäre in allen ungarischen Rathäusern

Viktor Orbán lässt nichts unversucht, seine Nation zu nötigen, sich […]

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18 August 2011

Ungarn-Slowaken: Ein Hoch auf die Brückenbauer

Slowaken, die eine andere Staatsbürgerschaft annehmen oder auch nur beantragen, […]

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05 August 2011

Ungarn: Zeit, die Handschuhe auszuziehen

Wie viel Schulden ein Staat aufnehmen soll, ist eine der […]

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16 July 2011

Ungarn: Orbán verdoppelt seinen Einsatz

Viktor Orbáns Versuch, seine Macht konstitutionell abzusichern, geht weiter: Das […]

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20 June 2011

Ungarn bekommt ein vernichtendes Zeugnis vom Europarat

Jetzt ist es offiziell: Die künftige ungarische Verfassung genügt nicht […]

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29 April 2011

Mein Schweigeinterview mit Orbáns Verfassungsexperte

Als ich vor ein paar Wochen nach Budapest fuhr, hatte […]

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15 April 2011

Ungarn: Die Justiz begehrt auf

Zu den wenigen Veränderungen, die es während der “Debatte” im […]

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05 April 2011

Ich habe mich bei der ungarischen Medienaufsicht beschwert

Ungarns Regierung will, wie wir wissen, die Medien stärker an […]

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30 March 2011

Aufruf zu Ungarn

Christian Boulanger und ich haben einen Aufruf verfasst, um unserer […]

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22 March 2011

Warum Viktor Orbán nie wieder vor Wahlen Angst haben muss

Mittlerweile gibt es eine englische Übersetzung des ungarischen Verfassungsentwurfs, zu […]

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20 March 2011

Ungarn: Eine Verfassung zum Fürchten

Ich bin gestern Abend in Budapest angekommen, habe mittlerweile mit […]

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10 March 2011

Ungarn: Der Entwurf der neuen Verfassung liegt vor

… wenn auch bisher nur auf ungarisch. Am 15. März […]

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25 February 2011

Ungarn: Kinderwahlrecht in die Verfassung?

Die ungarische Regierung, die mit ihrer Zweidrittelmehrheit dem Land eine […]

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17 February 2011

“Wir haben den ungarischen Geist aus der Flasche gelassen”

Ungarns Mediengesetz ist also ein kleines bisschen abgeändert worden. Das […]

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