Not letting the COVID-19 crisis go to waste, ensuring the effective enforcement of the European value of the rule of law in Hungary during times of Corona

By Kees Cath

In this post Kees Cath argues in respect to the situation in Hungary that the European Commission should act without any delay to prevent further rule of law backsliding. The opinions expressed in this article are the author’s own point of view and do not represent the government’s official position.

Orbán an unlikely student of Jean Monnet? 

“People only accept change when they are faced with necessity and only recognize necessity when crisis is upon them.”

Paraphrased, Jean Monnet seemed to underline the age-old adagio “never waste a good crisis”. There have been plenty of crises within the EU. Over the past few years the Union is engaged in what seems addressing one crisis after the other, from the Euro-crisis to the migration-crisis and from the Brexit-crisis to the Corona-crisis. 

Yet there seems to have been one European leader – though not evidently a student of Jean Monnet – that ironically did follow this advice scrupulously, yet erroneously. The changes instituted by the Orbán government are more far reaching, and have the effect of (further) undermining the Hungarian democracy. By amongst others declaring a state of emergency, ruling by decree indefinitely – with only the Fidesz two-thirds majority in parliament to provide for a possible check or reverse – Orbán has effectively legalized his (informal) hold over the Hungarian state. Within a package of already far reaching emergency measures the high penalties for spreading ‘fake news’ stand out as particularly disheartening. Even if no journalist is (ever) sentenced, the chilling effect on an already crippled media landscape, can be further reason for alarm. With Hungary effectively in lock-down, public demonstrations against the measures, as were visible against the 2018 elections or the 2019 ‘slave law’, seem impossible. So what has happened and who has been able to respond, and if so in what way?

European People’s Party sees an opportunity to oust Orbán?

The explicit response by a large number of national Christian Democratic Parties, collectively calling on 2 April for the ousting of Orbán’s Fidesz party from their ranks, can be applauded. They are right to assess that Orbán has no place within the European People’s Party (EPP). It can even be questioned whether Hungary would  currently meet the Copenhagen-criteria. Yet as has often been the case with EPP’s point of view towards the Hungarian government, the party remains largely divided. Without the support of the larger national Christian democratic parties such as the German CDU – which were also essential in the institution of the Article 7 procedure against Hungary – the prospects of an ‘ousting of Orbán’ remains unlikely. The EPP, despite numerous earlier steps such as the Central European University red lines brought forward by its leader Weber, the formal suspension of Fidesz from their ranks last year or the Article 7 procedure against Hungary – supported by a large part of the EPP – still seems far from having the effect of removing Orbán. Moreover, even if they were to be successful, it is uncertain what the effect of such a departure would be. It is highly unlike that an ousting would move Orbán to change his ways. His response to the EPP letter calling for his departure is indicative of how Orbán deals with criticism from within the European People’s Party: He stated amongst others that:

“With all due respect, I have no time for this! I’m ready to discuss the issue once this pandemic is over. Until then, I’m devoting all my time exclusively to trying to save the lives of the Hungarian people, and preparing measures for the social and economic recovery of the country, within the scope of our constitution. I suggest we all do the same in our respective countries.”

As much as it would liberate many within the European People’s Party from their increasingly uncomfortable alliance with Orbán, it would also liberate Orbán from any final Christian democratic political pressures. It is difficult to assess what would have become of Orbán’s Hungary had it not – at times – been restrained by the EPP’s heavyweights such as Kurz or Merkel. Therefore, the key to addressing this issue does not lie within the remit of the European Peoples Party. The largest ‘leverage’ rather lies with the Council and the Commission. So how should these institutions address the issue? 

‘He who shall not be named’ – statements by the Commission and Council members

Both institutions are confronted by a difficult dilemma posed by negative effects of political populism. If they decide to address the issue head-on, strongly condemning the Orbán government, it will provide Orbán with powerful political ammunition to play the victim, claiming – as he has effectively done during the migration crisis – that the Hungarian people are under attack from outside forces and institutions. If, on the other hand the response is too moderate it will allow Orbán to claim that his policy is condoned and set a dangerous precedent for other would-be European authoritarians.

The public response of the Commission has been limited. In a statement issued on 31 March Commission President Von der Leyen held that: 

“It is of utmost importance that emergency measures are not at the expense of our fundamental principles and values as set out in the Treaties. Democracy cannot work without free and independent media. Respect for freedom of expression and legal certainty are essential in these uncertain times. Now, it is more important than ever that journalists are able to do their job freely and precisely, so as to counter disinformation and to ensure that our citizens have access to crucial information.”

The response by an increasing number (originally 13) Member States to the emergency measures instituted by Hungary also fail to mention the obvious addressee: Hungary. This statement holds that:

“In this unprecedented situation, it is legitimate that Member States adopt extraordinary measures to protect their citizens and overcome the crisis. We are however deeply concerned about the risk of violations of the principles of rule of law, democracy and fundamental rights arising from the adoption of certain emergency measures. 

Emergency measures should be limited to what is strictly necessary, should be proportionate and temporary in nature, subject to regular scrutiny, and respect the aforementioned principles and international law obligations. They should not restrict the freedom of expression or the freedom of the press.

We need to jointly overcome this crisis and to jointly uphold our European principles and values on this path. We therefore support the European Commission initiative to monitor the emergency measures and their application to ensure the fundamental values of the Union are upheld, and invite the General Affairs Council to take up the matter when appropriate.”

Restraint is not the same as inaction

Difficult as it may seem from a principled point of view, in the short term – in the middle of the Corona-crisis – some restraint is wiser than polarizing political debates, which have plagued other fields of European policy. Yet restraint should not be the same as inaction. First, the Hungarian taunting – the Hungarian minister of Justice indicated her support for the statement – should be met with a (diplomatic rather than public) response that this statement was indeed directed against the Hungarian measures and government. In the (mid)-long term the Council must make haste with the Article 7 procedure, whilst – all at the same time – applying the pressures of (silent) diplomacy to prevent others from following in Orbán’s footsteps. Understandably headwind is to be expected, and considering the high voting requirement of the Article 7 TEU procedure a quick condemnation is unlikely. But those pushing for the importance of the rule of law should nonetheless further intensify their efforts, amongst others by continuously putting the issue on the agenda of the General Affairs Council.  Institutions such as the Venice Commission should also be actively involved to monitor the situation in Hungary. Invaluable as the contributions of the Council of Europe and the Venice Commission remain, these EU external institutions should not be the primary parties responsible for monitoring the rule of law within the EU. It remains an issue of EU values, which should be addressed primarily within the EU. 

The Commission must closely monitor the Hungarian emergency rules, in particular the implementation of the rules about ‘journalists and fake news’. Jailing journalists cannot and should not be considered acceptable within the EU. At the same time the Commission should maximize the (the threat of) the aggressive use of its infringement procedures against Hungary. More audacity and timely action is needed. Preventing backsliding on the rule of law is always better than trying to cure it after it occurred. The Court of Justice of the European Union has – and there is strong historical precedent – shown the necessary willingness to pick up the ‘rule of law’ baton, within the limits of the Treaties, and confines of the complex reality that is the EU multi-layer legal order. Taking the many cases on the Polish judicial reforms, and most recently the order to suspend the disciplinary chamber of the Polish Supreme court in Case C-791/19 R as an excellent example of their willingness to take action.But for its cases the Court is – in particular when it comes to Member States facing democratic backsliding – dependent on the Commission to bring forward the infraction procedures, rather than to wait for the unlikely situation that a Hungarian judge would ask preliminary questions on the legality of the state of emergency measures. Alternatively, ambitious ‘rule of law’ Member States can take Hungary directly to Court under Article 259 TFEU in order to defend the Rule of Law should the Commission fail to act.

Finally, post-Corona there should be a serious discussion within the institutions on the (financial) position of Orbáns’ Hungary within the Union. If the case for strict conditionality in MFF, a link between the protection of the rule of law and the funds Member States receive, wasn’t already clear-cut, it is now. As with any crisis, there is no abundance of ‘simple’ or ‘right’ choices to be made, only long lists of less favorable options. Let us hope the Commission and Council will not let this crisis go to waste.