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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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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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.
Continue reading >>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?
Continue reading >>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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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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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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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.
Continue reading >>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.
Continue reading >>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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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?
Continue reading >>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.
Continue reading >>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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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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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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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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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?
Continue reading >>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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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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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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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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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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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.
Continue reading >>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