The case is the latest example of Brussels attempting to bring errant Budapest into line and also comes at the same time as the EU’s own identity as a club of like-minded neighbours is in question. But it will, ultimately, be citizens, not lawyers and judges, who hold the answer.
To the dismay of many of its citizens, Hungary’s modern history has taken it from being a captive member of one club, nominally devoted to Karl Marx, to membership of another club toward which its leaders’ feelings evoke another famous Marx – Groucho.
If the comic supposedly quipped that he wouldn’t want to belong to any club that would admit him, many of Viktor Orbán’s EU peers wonder why the Hungarian prime minister remains in a Union for whose fundamental values – from respect for diversity to the rule of law – he shows little but disdain. Billions of euros in EU grants may be one reason.
The proceedings at the Court of Justice of the European Union in Luxembourg this week highlight an imbalance of geometry. When ordinary Hungarians demanded in 1956 to leave the Moscow-run Warsaw Pact, the question of whether membership was optional was answered by Soviet tanks. Anxious to avoid comparisons with dictators, the EU wrote into new rules it drew up 20 years ago an explicit right to leave (the Article 50 that Britain used to exit). But Brussels’ lawyers made no provision for kicking a member out.
There is, however, a range of legal and political instruments that aim to impose the collective will on wayward national governments. Hungary is far from alone in being taken to court. Indeed, every one of today’s 27 member states gets a ticking off in Brussels, on a fairly regular basis, from the European Commission, the executive branch of the EU administration, currently headed by Ursula von der Leyen. Some of those rows end up in court, where judges have tended to side with Brussels.
However, it is Hungary’s pushing of the envelope of misbehaviour that is drawing new attention to the glue that holds the EU club together. Along with the previous right-wing Polish government (Poland has now changed tack), Orbán’s use of his parliamentary majority to curb Hungary’s judges, media, academics, NGOs and political opponents in order to shield his party from voters changing their minds, has fuelled debate on how best to avoid the EU breaking up or lapsing into irrelevance.
Those outcomes would delight certainly Russia today, probably China, and maybe even the incoming U.S. administration, all irked in varying degrees by 450 million Europeans’ ability, at least some of the time, to act as one on global matters ranging from defence to trade policy.
Nationalist surge
Nationalist parties who agree with Orbán that Brussels is dictating policies that are, variously, too liberal, too green, too anti-Russian, too “woke,” are gaining ground in many states, including EU heavyweights Germany and France. Like the Brexit campaign in Britain, much of this anti-EU surge relies on the false premise that “unelected eurocrats” are governing us over the heads of elected governments.
Yet still it raises the stakes for defending EU law far beyond the welfare of Hungary’s 10 million citizens. And those stakes are also rising as the EU deals with membership applications from more countries with traditions very different from those of the bloc’s founders, and with troubled recent histories to boot, in the Balkans, notably, and, of course, Ukraine.
Striking a balance between states and the center is never easy in any kind of treaty-bound federation. In the United States, it took a civil war to determine that the federal government is boss. The European Union was founded to end wars, not spark them, and it bends over backwards to insist its nations remain sovereign. But without disappearing down a rabbit hole of legal and political theory, any club where not everyone is going to agree all the time needs not just rules, but ways to enforce them.
Crowded naughty step
The “guardian of the treaties,” in EU-speak, is the Commission. Its civil service listens to complaints and monitors whether countries are following EU rules. Every month, the Commission publishes lists of what are called “infringement” cases where it thinks national governments are out of line. Much of this revolves around the follow-up to changes in EU laws, proposed by the Commission and approved by the European Parliament and the ministers of member states sitting in the EU Council.
For those EU laws to have a real effect on you and me, they are supposed to be written in – “transposed” – to the 27 national legal systems. If they’re not, often simply because countries drag their feet, or if the Commission thinks the national rules are not properly written, or citizens or companies, or indeed other member states, complain that a country isn’t putting the law into practice correctly, that’s when we get infringements.
There’s a process in place that looks good on paper. You can try it yourself if you have a gripe – just click on “Submit a complaint” on the Commission’s website. If it agrees with you, the executive can ask governments to take action. If they don’t, well, see you in court. Judges can levy fines. Hungary, for example, was fined €200 million in June over its treatment of people seeking asylum, plus €1 million a day until it complies.
The problem is, Budapest hasn’t. And unlike you and me, if a country breaks the law, you can’t send it to prison. Indeed, even getting worked up, shouting, and waving a not very big stick isn’t necessarily effective.
Good cop, bad cop
An early taste of today’s problem came 25 years ago, after Austria’s Freedom Party, led by a Nazi apologist, won the most votes in an election and joined a coalition government. Shock and outrage in the EU was accompanied by embarrassment that there was little to be done. Signing up to rules on human rights and democracy had been essential for Austria to join the bloc five years earlier. But once you were in, you were in for good. Vienna suffered a “diplomatic boycott” – its ministers still showed up for EU meetings but they got a cold shoulder on other occasions. Even that ended within a few months, when EU leaders concluded that it was having little effect other than making the Austrian nationalists more popular and encouraging anti-EU sentiment elsewhere.
Two things followed events in Austria that illustrate the dilemma for the EU between carrot and stick. First, a new EU treaty introduced a rule, under Article 7, that stops short of outright expelling a member but allows for it to lose its voting rights – in other words a bigger stick. Second, however, the Commission began, and with little fanfare, to ease back on infringement proceedings. Even as the EU membership nearly doubled, numbers of infringement cases dropped sharply in favorr of a ‘softly, softly’ approach to persuading governments to comply. Good cop, Brussels reckoned, played better than bad cop, especially with voters unenthused by talk of a “United States of Europe.”
‘Nuclear’ option
In a club where everyone broadly shares the same ideas and is keen to rub along, that set-up worked reasonably enough, until first Poland under the Law and Justice (PiS) party, and then Orbán’s Hungary, began to try other members’ patience. In 2017, the Commission launched the first ever proceedings under Article 7 to demand that the Warsaw government stop trying to stack the judiciary with its supporters. The following year, the European Parliament exercised its right to ask member states to institute Article 7 proceedings against Hungary for straying from “EU values” on a raft of issues, from minority rights to judicial independence to official corruption.
It fairly quickly became clear that neither Warsaw nor Budapest was in immediate danger. Most obviously, the gravest sanctions can only be imposed by unanimous vote of the other members. Two “rogue states” can use their vetoes in a mutual defence pact. Much spoken of as the EU’s “nuclear option” against errant members, Article 7 mirrors the atom bomb in the sense that it has proven so hard to use that its deterrent effect on lower-level bad behaviour is debatable. Concern in other EU capitals, however, has resulted in expanding the range of tactical weapons available to the Commission.
Most notable are new conditions for receiving funds from the EU budget that require countries to show that they are abiding by EU standards on the rule of law. This resulted in Poland and Hungary seeing tens of billions of euros in EU cash frozen in 2022.
Since voters returned a strongly pro-EU government in Warsaw a year ago, Poland has done a U-turn on its judicial system and other issues, unblocking funds and seeing the Article 7 case against it dropped. Orbán, though, seems intent on doubling down, facing down calls for Hungary to forfeit its turn chairing EU meetings this semester and finding new allies in Europe. He’s also ramping up his friendships abroad, notably with President Vladimir Putin and the newly re-elected Donald Trump in Washington.
People’s voice
At the same time, however, EU money seems to talk in Budapest. News came this week of a tweak to rules governing Hungarian universities – to persuade Brussels to unlock funds frozen over concerns that Orbán loyalists would take control of higher education.
The EU is having to think hard about what club membership means and how far elected national governments can diverge from what others see as core values. As the past quarter-century has shown, there is no easy answer. Laws, and especially laws among nations, are not written in black and white. They merge with politics into negotiation and compromise. Citizens want to vote for local leaders they understand. But national leaders also need to note that their voters, like those of countries still queuing up to join, actually like the idea of a strong Union that can stand up for Europe. Brussels-bashing can be a vote-winner. But, voters, especially in poorer states, also value the positives of EU membership, such as peace, security, new roads, or easy foreign travel.
Orbán likes to say that Hungarians didn’t swap the Marxist diktat of Moscow for what he calls dictatorship from Brussels. But with approval ratings for the EU in Hungary mirroring those across the rest of the bloc – nearly half its voters feel positive towards the Union and only 14% negative – it seems Hungarians will be pretty grouchy if unpunished rule-breaking leaves the EU club an ungovernable international joke.
