European Parliament passes resolution on Hungary's Constitution

The European Parliament passed a resolution yesterday calling on Hungary to reform its constitution to bring it into line with EU values and norms. The resolution was passed by an EPP-S&D-Greens-United Left coalition, so it notably gained support from the European People's Party, which the ruling Fidesz party in Hungary is a part of.

The resolution is very detailed, outlining the background of the recent changes and the Parliament's objections to them in the areas of judicial independence, the media, the extensive use of cardinal laws (laws that need a 2/3s majority in the Hungarian parliament to pass, and therefore would be highly entrenched), changes to the data protection authority, the change in the electoral law, and the treatment of minorities.

The Parliament also called for a rethink of the EU's Fundamental Right Agency's role, suggesting that is could be used to monitor Member States' compliance with Article 2 TEU (which sets out the values of the EU), and that there could be a "Copenhagen Commission" to monitor compliance with these values and the Copenhagen Criteria before and after accession to the EU. (I've posted some similar thoughts previously). The resolution leaves open the possibility that it might try to trigger an Article 7 sanction against Hungary, tasking the Parliament's Conference of Presidents (the EP President and the leaders of the political groups) with considering the move.

Mostly the resolution echos the Council of Europe's Venice Commission's opinion on Hungary's constitution (PDF). This Commission provides legal advice to the Council of Europe's Member States on how their constitutions and constitutional reforms can comply with European human rights standards. I recommend reading the opinion, which is more detailed but also clearer then the resolution in its analysis of the Hungarian constitution.

The Parliament's resolution isn't binding on Hungary, but it does show that the Parliament is moving (slowly) towards using Article 7 TEU to suspend Hungary's voting rights in the EU. That the Commission is introducing a score-card and the Parliament is calling for a better institutional mechanism for monitoring and enforcing fundamental rights within the EU shows that patience is running out. Taking an Article 7 action would break the taboo over using the "nuclear option" - while the situation in Hungary has been a concern for a while, it has highlighted the need for the proper mechanisms and the political will to properly defend the Union's values.


Here are a few extracts from the resolution:

"8. Considers that while the use of two-third majority laws is common in other Member States and has been a feature of the Hungarian constitutional and legal order since 1989, the extensive use of cardinal laws to set forth very specific and detailed rules undermines the principles of democracy and the rule of law, as it has enabled the current government, which enjoys the support of a qualified majority, to set in stone political choices with the consequence of making it more difficult for any new future government having only a simple majority in the parliament to respond to social changes, and thus of potentially diminishing the importance of new elections; considers that such use should be re-evaluated, in order to ensure that future governments and parliamentary majorities are allowed to legislate in a meaningful and comprehensive manner.

[...]

19. [The Parliament i]s also extremely concerned about those provisions of the Fourth Amendment which repeal 20 years of constitutional jurisprudence, containing an entire system of founding principles and constitutional requirements, including any potential case law affecting the application of EU law and of European human rights law; notes that the Court already used its previous decisions as a source of interpretation; is concerned, however, at the fact that other courts may not be able to base their decisions upon the previous case law of the Constitutional Court.

[...]

30. Considers that the premature termination of the term of office of the Supreme Court’s President violates the guarantee of security of tenure, which is a key element of the independence of the judiciary.

[...]

38. Recalls that the redrawing of electoral districts, the adoption of the Act on the election of members of parliament of Hungary and the electoral procedural law considerably change the legal and institutional framework for the next elections due in 2014, and therefore regrets that these laws were adopted unilaterally by the ruling parties, with no broad consultation of the opposition.

[...]

46. Deplores the fact that the creation of the state-owned Hungarian News Agency (MTI) as the single news provider for public service broadcasters, while all major private broadcasters are expected to have their own news service, has meant it has a virtual monopoly on the market, as most of its news items are freely available; recalls the recommendation of the Council of Europe to eliminate the obligation on public broadcasters to use the national news agency, as it constitutes an unreasonable and unfair restriction on the plurality of news provision.

[...]

53. Notes with concern repeated changes to the legal order restricting the rights of lesbian, gay, bisexual and transgender (LGBT) people, for instance by seeking to exclude same-sex couples and their children, as well as other varied family structures, from the definition of 'family' in the Fundamental Law; stresses that this runs counter to recent European Court of Human Rights jurisprudence and fuels a climate of intolerance vis-à-vis LGBT people."

Could Fidesz be expelled from the European People's Party?

Der Standard reported yesterday on a dinner of leading members of the EPP, including Joseph Daul and Commissioner Viviane Reding, to consider whether the ruling party in Hungary, Fidesz, should be expelled from the party:

"In der Europäischen Volkspartei (EVP) hat man die ungarische Mitgliedspartei Fidesz (Bund Junger Demokraten) Medienberichten zufolge zunehmend satt. Bei einem vertraulichen Abendessen im mondänen Klub der Festung Revelin bei Dubrovnik tauschten sich am vergangenen Donnerstag die Spitzen der EVP-Fraktion im Europaparlament, angeführt von Fraktionschef Joseph Daul, und die gleichfalls konservative EU-Justizkommissarin Viviane Reding über die jüngsten Verfassungsänderungen in Ungarn aus. Die Novelle festigt die Macht von Premier Viktor Orbán weiter auf Kosten von Justiz und Rechtsstaatlichkeit. Sollte Orbán innerhalb einer Woche keinen Rückzieher machen, werde man "Fidesz aus der EVP hinauskomplimentieren", soll bei dem Dinner vereinbart worden sein.

[The European People's Party (EPP) has become increasingly tired of the media reports of their Hungarian member party, Fidesz (the Alliance of young Democrats). At a confidential dinner in the Revelin in Dubrovnik last Thursday, leading members of the EPP Group in the European Parliament and Justice Commissioner Viviane Reding discussed the recent constitutional changes in Hungary. These changes have further consolidated the power of the Prime Minister Viktor Orbán at the cost of the rule of law. The dinner concluded that if Orbán does not reverse course then Fidesz should be shown the door. (My Translation)]"

The EPP have rejected the story, but Der Standard's source for the story, a journalist from Új Magyar Szó (a Hungarian-language paper), says that Daul initiated the meeting. If the EPP is seriously thinking of expelling Fidesz, the party may try to join the European Conservatives and Reformists Group. That could be a boost to ECR numbers in the European Parliament, but it would be a controversial member to take on.

The pressure will be on Fidesz this week, with the constitutional situation up for debate in the European Parliament on Wednesday. Last week Barroso raised serious concerns over the latest change to the hungarian constitution, particularly because of interferences with the judiciary's powers, and it appears that the Commission is considering legal action:

"[Refering a Letter to Viktor Orbán:]

President Barroso indicates that, once the on-going legal analysis carried out by the Commission's services has been finalised, the Commission will have to take the necessary steps in order to start infringement procedures where relevant. "I strongly appeal to you and to your government to address these concerns and to tackle them in a determined and unambiguous way. This is without doubts in the best interest of Hungary and of the EU as a whole" – President Barroso says in the letter

The letter in particular refers to Commission concerns about the conformity with EU law of the new articles of the Hungarian Constitution on the clause on European Court of Justice judgements entailing payment obligations, the powers given to the President of the National Office for the judiciary to transfer cases and, subject to a more detailed analysis, the restrictions on the publication of political advertisements."

Concerns over Hungary's constitutional changes have been growing over the last few years. There was a blogging action over the new press laws and heavy criticism of the new constitution. Marco Dani, over at Verfassungsblog, highlights why these changes are important for the rest of us in an interesting piece on how the EU deals with these situations (and Article 7 TEU):

"[G]iven the interconnections between supranational and national decision-making, preserving national democratic processes from toxic elements is a way also of ensuring the democratic credentials of the EU institutions and political process. This is why Hungary matters not only for Hungarians but also for European citizens at large. And this is why, if European citizens are really affected by the authoritarian slide in one country, it is also up to them to react, especially when, as it is the case now, other institutional actors seem hesitant."

Justice Scorecards

Viviane Reding, the Justice Commissioner, has announced a Justice Scorecard. The concern over justice and the rule of law in Hungary and Romania lately prompted the move. Romania is subject to reports on the condition of its justice system.

On EUObserver:

""I am prepared to come once a year before this house to share with all of you the commission's assessment of the justice systems of the 27 member states," she told MEPs in Strasbourg.

The scoreboard would gauge the various strengths and weaknesses of each member state by benchmarking judicial "strength, efficiency and reliability.

People from Reding's department would probe the national set-ups and issue annual reports, paying particular attention to the independence of the judiciary.

[...]

Reding now wants to extend such annual reports [Romania is subject to annual reports] to the rest of Europe and claims to have the backing of several member state ministries, including Germany's foreign minister.

"We need such a new mechanism. Because our infringement procedures are too technical and too slow to react in situations of high risk to the rule of law," she said."

It's a good idea because the infringement procedures deal with the technical and narrow infringements of EU law, which is not set up to deal with broad rule of law and judiciary matters, but co-ordination in justice and home affairs between national justice systems. This means that the infringement proceedings don't actually address the core issue of the protection of the rule of law and fundamental rights, but national leaders can claim that their proposals and measures are compatible with European laws and values. I'd have preferred it if such reports were to be issued by the Fundamental Rights Agency to ensure more independence (and continuity - will these scorecards continue after Reding has left the department?), but this is a good start.

Romania and the rule of law in the EU

The EU is a strange creature: in order to join a country must respect democracy, fundamental rights and the rule of law - a concept that is becoming ever more detailed and developed on the European stage - but the EU finds it incredibly difficult to ensure these standards are respected one a country is inside the club. There have been a few battles over the last few years: France's treatment of the Roma, Hungary's constitutional changes in the media and the courts, and now Romania.

In Romania there is a power struggle over the constitution and the presidency. The social democrat Prime Minister, Victor Ponta, wants to impeach the unpopular conservative president Traian Basescu and has tried to change the threshold necessary in the process to get it done. The Economist also lists a number of seriously worrying changes that the Romanian government wants to bring about:

"His government has replaced the ombudsman (the only brake on emergency government ordinances), grabbed control of the Monitorul Oficial, the official promulgator of laws and decrees, taken over the national cultural institute and threatened to fire the judges of the constitutional court."

These changes has provoked concern in Brussels (and Berlin) over the threat to the rule of law. There is a way of sanctioning Member States that break the values of the EU: under Article 7 TEU a country in breach of these values can be stripped of its voting rights. However it's a nuclear option, and one that is difficult to threaten, never mind enforce or enact. There are two linked reasons for this: one technical and one political.

Politically it is hard for Member States to condemn a fellow Member State, and if the government of the offending Member State is aligned to either the EPP or PES (sitting in the S&D group in the Parliament), then it could have a strong lobby in its favour. Both the S&D and EPP have acted in the Hungarian and Romanian cases in support of governments that they are aligned with, as the Financial Times Blog rightly points out. The tactic used is generally to call for time while the Commission launches an investigation. This brings us to the second problem: the Commission only can investigate on narrow technical grounds, which allows for governments to make some concessions on these matters to lessen political pressure, while the measure is largely passed intact.

The Commission is equipped as a guardian of the treaties, but not as a protector of fundamental rights. To change this and to create a better culture for fundamental rights protection, it would be better for the Fundamental Rights Agency* to be empowered to assess the state of fundamental rights and compliance with the rule of law and EU values. Then it could recommend in a report what needs to be changed to bring a government back into line.

It would still be up to the Commission, Council and Parliament how they should act and if they invoke Article 7 TEU. Still, it is important that we move away from the culture of hiding behind technical requirements and changes and to a culture of debating the substance of protecting rights and the rule of law in the EU and the Member States. Even now European approval - or lack of sanction - carries a certain moral authority and legitimacy. We should make sure this is put to good use and not twisted and hollowed out to provide cover for subverting the rule of law. *The FRA's remit would probably need to be expanded for this.

Debate on Hungary in the European Parliament

Hungary's Prime Minister addressed the European Parliament today in the debate on Hungary's new constitution and Fidesz's actions in power. Earlier, in the debate on the Danish presidency, Danish PM Thorning-Schmidt signaled her support for the Commission's legal action against Hungary, side-stepping the question of using Article 7 TEU against Orban's government if Fidesz doesn't make sufficient changes.

Viktor Orban repeated his defence of the new constitution to the EP: that it was the final part of the transition from Communism to democracy. EPP group leader Daul continued along the same line, agreeing with Orban's assessment that it was part of the transition to democracy, while also signalling support for any changes that might be required under EU law. This is a shameful balancing act by the EPP leadership - both the Hungarian government and the Commission are linked to the European People's Party: Fidesz is part of the EPP and the Commission is dominated by the EPP. Since the legal action that can be taken by the Commission is limited to narrow breaches of EU law, rather than the separate procedure for breaches of the EU's values under Article 7 TEU, Daul is essentially making it known that the EPP in Parliament will block any motion to initiate the Article 7 procedure against Hungary. Zbigniew Ziobro (Europe of Freedom and Democracy group) came out in full support of Orban, denouncing EU interference as interference in a sovereign state, and praising Orban for standing up for Hungary.

Guy Verhofstadt (leader of the liberal ALDE group) attacked the direction of Hungary's government and brought up the issue of Article 7:

"What is necessary is to check the conformity of the Hungarian Constitution and cardinal laws with the European values: democracy, the rule of law, the freedom of religion, the freedom of expression, equality also.

I think, besides the infringement procedures, this House, should take its responsibility.

I call on our colleagues of the LIBE committee to make a report on the basis of article 71 TEU. Stating YES or NO if there is a clear risk of a serious breach of our values. That is what we have to do."

A parliamentary report finding a breach of EU values would be the basis for a reasoned opinion which would be part of an EP motion for an Article 7 action. While Hannes Swoboda, the new leader of the Socialists and Democrats group, was very critical of the Orban government and the authoritarian culture surrounding it (pointing out that if Croatia had adopted the same rules it wouldn't be given EU membership) and mentioned the question of starting the monitoring step for Article 7 (though not as stongly as Verhofstadt). He also urged the EPP to hold Orban to account. Daniel Cohn-Bendit gave an impassioned speech for the Greens against Orban and his line on his government's anti-Stalinist motives.

Since the United Left and European Conservatives and Reformists groups were also critical of Hungary, it might be possible that the Parliament will flex its political muscle by starting the Article 7 procedure. Even if it does, it would take 4/5s of Member States voting for the motion for it to be passed, which is extremely unlikely given the dominance of the EPP in the Council, but such a clear and determined action by the EP would send a powerful political signal and keep this issue in the spotlight.

What legal action is the Commission taking against Hungary?

The Commission has announced that it will be taking legal action against Hungary, but only so much can be done under EU law. While people point out that:

"Viktor Orbán's regime combines the extreme centralisation of economic assets (including the expropriation of the private pension funds, of several public foundations and the forthcoming centralisation of the municipal government's assets) and the monopolisation of power in a single party that intends to dominate every aspect of social and private life, turning citizens into subjects. The improvised nature of many of the new laws creates a wide margin for arbitrary decisions that increase dependence and insecurity.

In addition to a frontal attack on civil liberties, the government has redistributed economic assets (particularly through the tax system and investment allocations) in favour of interest groups close to Fidesz and a restricted layer of the well-to-do. This group zealously defends the party's power and executes its guidelines.

At the same time – through the unilateral rewriting of the labour code, the restriction of union action and collective bargaining rights, the radical dismantling of social welfare nets and independent social care institutions – the government exposed the most vulnerable social groups (the poor, the unemployed, Roma, pensioners, sick and handicapped) to the unfolding economic crisis. Life is precarious for those who live on wages and have no reserves or additional revenue."

...the Commission doesn't have the jurisdiction (and neither does the European Court of Justice) to take Orban's government to task over all these issues. The Commission has decided to focus on the areas of the independence of the judiciary, the independence of the central bank, and the independence of Hungary's data protection authorities: probably because the EU legal case is strongest here. Let's look at some of the reasons behind the legal action:

"1) Independence of the national central bank

"The Commission has identified several breaches of primary law, notably breaches of Article 130 TFEU stipulating full independence of the central bank and of Article 127(4) TFEU requiring consultation with the ECB "on any draft legislative provision in its field of competence".

•Article 130 TFEU states that: “neither the ECB, nor national central bodies, from bank … shall seek or take instructions from Community institutions or any government of a Member State or from any other body”.

•Article 127(4) TFEU stipulates that "the ECB shall be consulted […] on any draft legislative provision in its field of competence"

Moreover, 14.2 of the Statute of the European System of Central Banks and of the ECB as well as Article 4 of Council decision (98/415/EC) on timely consultation of the ECB were not respected. On a number of elements, the Commission has invited the Hungarian authorities to provide clarification.

The infringements identified in the letter of formal notice concern both the MNB law ('Magyar Nemzeti Bank') but also the new constitution.

Under the MNB law, the Minister can participate directly in the meetings of the Monetary Council, offering to the government the possibility to influence the MNB from the inside. Similarly, the agenda of MNB meetings needs to be sent to the government in advance, thus impeding its capacity to hold confidential discussions. Also, changes in the remuneration scheme for the Governor are made again immediately applicable to the incumbent, while they should apply only as of a new term to avoid using salaries to put pressure on the MNB. Finally, the Governor and the members of the Monetary Council have to take an oath (of fidelity to the country and its interests) whose text is problematic given that the Governor of the MNB is also a member of the General Council of the ECB.

The Commission has doubts on the rules of dismissal for the Governor and the members of the Monetary Council which are prone to political interference (even the Parliament can propose to dismiss a member of the Monetary Council) and possible misuse. Also the frequent changes of the institutional framework of the MNB raise doubts, for instance via the increase in the number of Monetary Council members together with the possibility of increasing the number of deputy governors without due consideration of the MNB’s needs.

Moreover, a constitutional provision regulates the possible merger of the MNB with the financial supervisory authority. While the merger is not a problem as such, the MNB Governor would become a simple deputy chairman of the new structure, which would structurally encroach on his independence.

2) Independence of the judiciary

The infringement case affecting the judiciary focuses on the new retirement age for judges and prosecutors and relates to Hungary's decision to lower the mandatory retirement age for judges, prosecutors and public notaries from 70 years to the general pensionable age (62 years) as of 1 January 2012.

EU rules on equal treatment in employment (Directive 2000/78/EC) prohibit discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification is needed if a government decides to reduce the retirement age for one group of people and not for others. This principle was affirmed when the Court ruled on 13 September 2011 that prohibiting airline pilots from working after the age of 60 constitutes discrimination on grounds of age.

In Hungary's case, the Commission has not found any objective justification for treating judges and prosecutors differently than other groups, notably at a time when retirement ages across Europe are being progressively increased and not lowered. The situation is even more legally questionable because the government has already communicated to the Commission that it intends to raise the general retirement age to 65.

As regards the independence of the judiciary, the Commission is also asking Hungary for more information regarding new legislation on the organisation of the courts. Under the law, the president of a new National Judicial Office concentrates powers concerning the operational management of the courts, human resources, budget and allocation of cases. There is no longer collegial decision-making of the operational management of the courts or other appropriate safeguards. One person alone now makes all important decision on the judiciary, including as regards the appointment of judges. In addition, the mandate of the former president of the Supreme Court, who was elected for six years in June 2009, was prematurely terminated at the end of 2011. In contrast, other former judges of the Supreme Court continue their mandate as judges of the new Curia, which has replaced the Supreme Court. The Commission expects detailed answers of the Hungarian authorities to be able to decide whether further infringement proceedings are needed.

3) Independence of the data protection supervisory authority

The case on the data protection supervisor relates to Hungary's recent decision to create a new National Agency for Data Protection, replacing the current Data Protection Commissioner's Office as of 1 January 2012. As a result, the six-year term of the Data Protection Commissioner currently in office, who was appointed in 2008, will be prematurely put to an end. There are no interim measures until the term of the current Commissioner's term ends in 2014.The new rules also create the possibility that the prime minister and president could dismiss the new supervisor on arbitrary grounds.

The independence of data protection supervisors is guaranteed under Article 16 of the Treaty on the Functioning of the EU and Article 8 of the Charter of Fundamental Rights. In addition, EU rules on data protection (Directive 95/46/EC) require Member States to establish a supervisory body to monitor the application of the Directive acting in complete independence. This has been confirmed by the Court of Justice. In its ruling in a case concerning Germany (C-518/07 of 3 March 2010), the Court underlined that data protection supervisory authorities have to remain free from any external influence, including the direct or indirect influence of the state. The mere risk of political influence through state scrutiny is sufficient to hinder the independent performance of the supervisory authority's tasks, the Court ruled."

The outcry over what is going on in Hungary has been very political - in the sense that it's been about the high politics of rights and what makes a fair democracy - and rightly so. The Commission's response reveals the nature of the EU's power when it comes to protecting these key rights: as an organisation of sovereign Member States, the EU can only act where the Member States have contravened EU law. The EU treaties don't define a specific governing structure that Member States have to have, such as a presidential or parliamentary system or how their judiciary is organised (though it does set human rights and democratic tests for candidates to pass before they join), so the points of EU law can be quite narrow. This is especially obvious when it comes to the Commission's action over the judiciary laws - the action focuses on the unfair dismissal of serving judges, rather than the general separation of powers between the judiciary and the executive. The press release references these wider questions and demands answers, but whether or not there will be further legal action depends on whether or not the measures breach EU law.

The Commission (and the EU) is therefore not well placed to become a crusader for liberal democracy in its Member States, so there's a limit to what we can expect. The EU can, however, remove Hungary's EU voting rights via Article 7 TEU as a last resort, but this would require a super-majority. The Commission should investigate the changes to the electoral system and judiciary with an eye to using Article 7 if Hungary refuses to reverse any abuses. While the EU and the Commission's power might be limited (and we need to bear this in mind when Hungary claims it has changed its judicial rules in line with EU requirements), we should demand that all Member States live up to minimum democratic standards if they want to stay in the EU.

Today the European Parliament will be debating the Hungarian situation.

The Orbarony of Hungary

This weekend saw, rightly, a wave of stories about Hungary (see yesterday's Week in Bloggingportal for some blog articles). The new constitution came in for a strong attack by the Party of European Socialists president Sergei Stanishev:

"Hungarian democracy is under siege. The actions of the conservative Fidesz government under Prime Minister Viktor Orbán have resulted in an unprecedented attack on basic international democratic standards. It is an extraordinary thing to say in the year 2012, but the cold hard fact is that the European Union could now be said to include a non-democratic state as one of its members.

Now it is a test for European leaders and institutions of their commitment to democratic values when democracy is at stake. It is not a matter of internal policy but rather the question of whether the EU will preserve one of its core values and features. A new constitution has been in place in Hungary since January 1 this year. It contains set of provisions that are an attempt to institutionalise authoritarian rule. The measures have been, accurately, described as a 'constitutional coup'.

[...]

The essential point is this: there does not seem to be any end-point to the actions of Fidesz. Their actions indicate a consistent and quickening slide towards authoritarian rule. Those responsible have not listened to rational requests and they have not heeded eloquent calls to respect democracy. Therefore the international community must look at more robust measures."

The PES counts the opposition MSZP party among its members. The changes brought about by the new constitution are:

"- The Constitutional Court has been stripped of its powers
- The government can decide which judges will review which cases
- The supervision of elections is overseen by a new Council of Government party appointees
- A'media board' of government appointees has been given power to decide what constitutes "balanced" media coverage and has been allowed to impose fines which only be appealed after payment
- Tax and fiscal policy, including a new flat tax, can only be changed by a two-thirds majority.
- The government can appoint a deputy governor to the central bank
- Provisions to protect citizens from discrimination based on sexual orientation have been deleted."

The governing Fidesz party is part of the European People's Party, which controls the Commission and the Council of the EU, and is the biggest party in the European Parliament. The Economist has called for the EPP to be tough on its wayward member:

"Mr Orban’s fellow centre-right leaders, who include Germany’s Angela Merkel and France’s Nicolas Sarkozy, have more leverage over him than other European politicians, and therefore a particular responsibility to take him to task. Fidesz is proud to belong to their umbrella group, and the biggest political family within the EU, the European People’s Party. Threatening to chuck Mr Orban out of the EPP could be the best way of steering him off the path towards autocracy."

The only communication I can find from the EPP on the issue was this press release, stating that they would support whatever decision the Commission took on the constitution's compatibility with EU law - but this is not simply a matter of compliance with EU legal requirements (though The Economist points out that the Commission should stand firm on the requirement for an independent central bank). This is a question about European values and the standards of democracy that a Member State should be held accountable to. Candidate countries have to measure up to a certain democratic standard: so should current members.

While the EPP may control the Commission and play up its central role in European politics (every press release ends with a note to the editor on the size and influence of the Europarty), but as a political and parliamentary group it seems content to accept the decisions of the Commission and Council - no rebellious backbenchers, these. The press release shows the party trying to have it both ways, stating that they would support technical corrections, but using language supporting Orban's post-Communist narrative of the new constitution:

""The Hungarian Parliament adopted on 18 April 2011 a new constitution that replaced a Stalinist-type constitution, which dated from 1949. Hungary was the only country in Central Europe which could not draft a new fundamental law since the fall of communism. The new constitution has incorporated the Charter of Fundamental Rights and also a new, fairer electoctal system was established which offers the possibility for minorities to be represented in Parliament," said [EPP Leader and EP Group Chairman] Martens and Daul.

"At the same time, we are well aware that the European Commission has raised issues on some pieces of legislation and is currently examining the English and French translations to determine if they comply with EU law. [...] Needless to say, the EPP will back the Commission’s recommendations that will ensure Hungary’s full compliance with EU law.""

The EU cannot work if we don't stick to our common values: what happens to the trust that cooperation and common rules have to be founded on to work, if we don't feel that some members aren't following the same basic standards? It's an issue that we need to be strong enough to take on. Not only when it comes to Hungary, but for all members.

Hungary for change

Last year when Hungary was taking over the rotating Council presidency, the Fidesz government was bringing in a controversial media law which we launched a blogging action over. Though the law was revised after discussions with the EU, EU law in the area is mostly market-based. This time around the independence of the Hungarian Central Bank is under threat and is the source of a dispute between Hungary and the IMF:

"Hungary, the EU's most indebted eastern member, already saw its credit rating downgraded to junk in December and initiated talks for a standby loan from the International Monetary Fund (IMF).

But the centre-right government led by Viktor Orban has pursued controversial legal changes to some of the country's independent institutions, including the central bank and media bodies, prompting IMF negotiators to walk out of talks.

The laws came into force on 1 January, prompting tens of thousands of people to take to the streets on Monday and repeated warnings from the EU commission that it may take Hungary to court."

The markets haven't reacted well to Hungary's course either:

"The forint fell to 319.4 against the euro, a record low after a gradual depreciation of 20 percent in the last six months, while 10-year bond yields spiked to 10.5 percent, the highest since April 2009."

At the moment Orban's government seems intent on sticking to it's course despite protests and pressure from the EU and IMF - perhaps the plan is to use the bank to print more money to avoid the necessity for the IMF loan. Fidesz's two-thirds majority in the Hungarian parliament allows it to change the constitution, and it's been making full use of the opportunity. Orban has made it clear that he sees these changes as the end-point of Hungary's post-Communist path:

"In Orban's view, the new legal text "marks the end of the country’s transition to democracy from Communism" - as he explained in an interview with the Magyar Nemzet newspaper on 24 December.

Foreign journalists are "right when describing what happens in Hungary not just as simple governance, but a regime change," he told the newspaper.

"They say this in a disparaging way but I think this is a compliment. We Hungarians have failed for over a hundred years to show western Europe our own virtues.""

It seems pretty odd to be portraying the rapid expansion of executive power as an anti-Communist evolution, particularly when former Communist dissidents are protesting against Fidesz's constitutional changes. Orban's rhetoric also smacks of Hungarian exceptionalism and is reminiscent of the talk of differing values and rights from the media law debates last year (not that anyone explained how Hungarian rights should differ from those set out in the European Convention on Human Rights or the values in the EU treaties).

As the EU deals mostly with internal market, security and environmental matters, and the Council of Europe's Convention and Court of Human Rights deals with human rights law and standards, the EU isn't well equipped or experienced enough to deal with Member States drifting away from the standards required for membership. Article 7 TEU gives us a nuclear option of sanctioning a Member State who risks breaching the values of the EU, but it would require a four-fifths majority of Member States and a majority in the European Parliament, which is unlikely to be reached (and would need to be focused on the health of Hungary's democracy and media rather than the central bank).

It does raise an interesting question though: what "red lines" should the EU have for Article 7 action, and how much constitutional change can be brought about before the EU starts questioning whether a country is still membership material?

The Veto

Cameron has played the UK's veto. Returning social policy powers to London wasn't on the table, but it seems that having a seat at the Eurozone meetings and opt-outs on financial services laws were. Ironically the former was to ensure that the Eurozone didn't start dividing up the internal market, while the latter would have, er, divided the internal market by providing one rule for the UK and another for the other 26...

In any case the UK has been left out of the negotiating room: the deal will be signed by 23 Member States, with others considering whether or not to sign up. Backing out of a deal was always going to upset the Eurozone countries, but it will be interesting to see how the UK's relations will develop with the other non-Eurozone countries. Sweden's foreign minister mocked the UK's position in a tweet:

"Worried that Britain is starting to drift away from Europe in a serious way. To where? In a strong alliance with Hungary."

The inclusion of these other non-Eurozone countries should be enough to ensure that the Eurozone doesn't go ahead on internal market matters without the rest of the EU (the Danish presidency will be particularly helpful in protecting the position of non-Eurozone members), though it probably does damage the short term influence of the UK in the EU.

Geographical Values

There's a new blog over at Blogactiv - "EUphobia", which has the tagline: "The Unofficial Troll Blog of the Hungarian Presidency". In its first blog post, The Party has Started, EUphobia doesn't defend the Hungarian media law (rather the opposite), but does defend the Hungarian government, comparing it to the previous government: while the laws may not be good, the argument runs, at least its better than the disregard the previous government had to laws and rights. In the comments section there is a discussion that touches on the political leanings of the EU and whether its values are "Western European values".

A part of the post which I found worrying was:

"Another important point is how to “purge” Hungarian media and state offices from the socialist plague?

[...]

Communism, national socialism and socialism are the same sort of ideological infections and should be quarantined. Comments reflecting these ideologies will be strictly deleted."

That's not to say that there aren't abuses in the media in Hungary at present (I don't know enough about the previous government and its relations with the media to comment), but if their political colour (the focus on socialism) is the popular rallying cry behind taking action, it does raise concerns.

I posted this comment (awaiting moderation at the time of writing):

"The EU is definitely not left leaning - the EPP have been in the majority in most of the institutions since 2004. I think that the values aren’t a left-right issue (though more specific political ideas and values clearly are), and that they are a part of most of the political parties at a European and national level. One of the worrying aspects of this (apart from the law itself), is the relevation of what seem to be the terms of the debate within Hungary. The last government was undoubtedly rotten, but the extent of the demonisation of anything approaching opposition is troubling - your own mention of “purging” adds to the impression that the whole thing is based on tribalistic party politics rather than any positive values of the Fidesz party itself. Which in turn raises worries about how the vague media law will be applied.

European values are indeed patchily applied, and Hungary is the focus at the moment because it is caught in a perfect storm of a bad law coming into force, mixed with worryingly tribalistic-sounding politics, and its assumption of a high-profile European post (even if the profile of the rotating presidency has fallen after the Lisbon Treaty). The EU is ill equiped to deal with rights issues within Member States - human rights is a ECHR/Council of Europe issue more than an EU one. It seems that rights issues are increasingly important in the EU - it could be a sign of how EU countries are growing closer together, with citizens taking more interest in rights issues in other Member States - as can be seen from the Roma crisis.

I certainly hope that “European values” are ones that Eastern Europe can ascribe to as well as Western Europe - after all, all the EU Member States, East and West, have signed up to these values in the EU Treaties, the EU Charter of Fundamental Rights, and in joining the Council of Europe. Applying pressure and scrutiny to countries is, however, not very equal - as the EU isn’t well equiped to deal with such questions, power and state size become bigger issues in how countries are treated. There is the nuclear option of suspending a country’s voting rights, but this is unlikely to be used.

Past lapses in applying standards cannot be used as an excuse not to apply or aspire to such standards now. A wider issue how should the EU deal with these questions.

On the other hand, if it’s not a question of unequal application and Eastern Europe does have different values to Western Europe - what are they?"

How should the EU deal with values in the Member States, and does Eastern Europe really have different values (and, if so, what are they?), or is it more an issue of unequal application of principles?

EPP President defends Hungarian Media Law

The centre-right European People's Party (the biggest in the European Parliament), or specifically its President, Wilfried Martins, has defended the new Hungarian Media Law, which blogs, including this one, are against due to the chilling effect it will have on press freedom. In the absence of any other EPP comment on the subject, it seems like it's the current EPP position.

Martins said:

""I appreciate the efforts of Prime Minister Viktor Orbán and his government to improve the former Hungarian media law with the aim to strengthen the freedom of the press, the culture of respect, the protection of minors and human dignity. I also understand the challenge of strengthening media accountability, while keeping media freedom intact. Discussion on the Hungarian media law should not be based on the politicaly motivated misinterpretations, but on the exact knowledge of the text.""

By politically motivated misinterpretations, I suppose he's referring to the outburst of fellow party member and Luxembourgish Foreign Minister Jean Asselborn who condemned the laws, saying: "It's a direct danger for democracy".

Or perhaps the OSCE, which produced a damning report on the law in September (PDF), and is still talking about it in strong terms:

""I am concerned that Hungary's parliament has adopted media legislation that, if misused, can silence critical media and public debate in the country," Mijatovic [OSCE Representative on Freedom of the Media] said, referring to the "Law on media services and mass communication", adopted on 20 December.

"The law regulates all media content - broadcast, print and online - based on identical principles, which runs against OSCE standards on free media. It also gives unusually broad powers to the recently established media authority and media council, which are led exclusively by members supported by the governing party," Mijatovic said.

Traditionally, regulatory authorities govern broadcast media only, but the new law in Hungary empowers the authorities to also govern print and online media content.

"Such concentration of power in regulatory authorities is unprecedented in European democracies, and it harms media freedom," Mijatovic said. "Regulating print media can curb free public debate and pluralism. Even though regulating online media is considered technologically impossible, it introduces self-censorship.""

So far, two other European parties have commented: the Liberals (ALDE), and the European Greens. The Liberals are calling for the Commission to take (as yet undefined) action, and the European Greens want Article 7 TEU to be used against Hungary (the article is the mechanism for dealing with EU Member States who breach the fundamental values of the Union). Scope for EU action on the subject is somewhat limited, but it is hard to see this nuclear option succeeding against Hungary, particularly when it holds the rotating presidency. Article 7, does, however, mean that the EP could try to apply political pressure through its resolutions or even trying to start the Article 7 procedure.

Martins also stated the EPP's support for the Hungarian Presidency (Fidesz, the ruling party in Hungary, is an EPP member):

""I would also like to take this opportunity to wish Prime Minister Viktor Orbán a successful EU Presidency. Needless to say, for the next six months PM Orban can rely on the full support of the EPP," Martens added."

In this Parliamentary term the EPP have definitely been the "government party", supporting the positions of the (EPP-dominated) Council and Commission. It's a pity that the governing party and opposition aren't being tested properly on their records, particularly as EP votes and support are key to getting proposals through...



[Also, see Deutsche Welle for a broader view of the prospective Hungarian Presidency].

Note: Post edited the same day, thanks to Cédric picking up on an Article 7-related mistake.

Blog Action against Hungarian Media Law

Bloggingportal.eu has called for a Blog Action against the new media law that will come into force in Hungary on January 1st. Hungary will assume the rotating presidency of the Council for the next 6 months, and has set up a presidency blog, so it is a great time for the Euroblogosphere (and national blogospheres) to highlight the dangers to press freedom, and to push for the law's repeal.

You can find the OSCE's damning assessment of the legislation here: PDF.

OSCE Report:

"They will introduce a highly centralized governance and regulatory system, with many new and unnecessary bodies of oversight and supervision and with many decision-making processes involving a succession of inputs by disparate bodies – probably breeding conflicts and inefficiencies, but also multiplying opportunities for political control. The whole system may have a serious chilling effect on media freedom and independence ((by encouraging selfcensorship) and on the exercise of freedom of expression.

[...]

The new institutional framework may, if deliberately (mis)used for this purpose, create conditions for the realization of the “winner-takes-most” or indeed “winner-takes-all” scenario in the current term of Parliament, in defiance of the principle of the division of powers and of the checks and balances typical of liberal democracy. As such, the design of this framework runs directly counter to democratic standards in the field of media system organization and governance. Accordingly, this package, which exceeds what is justified and necessary in a democratic society, is cause for very serious concern."

The legislation covers traditional and internet media, though the OSCE report fears that the legislation is framed so all internet content could conceiveably be covered by the law. In any case, the law will change the media landscape in Hungary significantly, by bringing in content regulation where previously the content itself had been "virtually free" of, and which is "without precident in democratic countries" (page 6 of the report PDF). The legislation will set up a National Media and Telecommunications Authority, which the Hungarian government will be able to appoint officials to, and will oversee media (including group blogs) in Hungary, without the national parliament being able to form a adequate check on the government:

"...the manner of appointment of the Media Council Chairperson
amounts to nothing less than government capture of Parliament. Parliament is left no choice but to vote for the Prime Minister’s candidate. Moreover, should it fail to elect that person, its decision will be disregarded in the sense that the President would still chair meetings of the Media Council (with a voice, but not a vote) and the only option left to Parliament would be eventually to elect that same person to this position – or leave the position unfilled, thus considerably weakening the MC. This is very likely if the governing party/coalition does not have a two-thirds majority in Parliament. Then, the solution designed to promote the development of consensus on the chairmanship of the MC could easily turn into an opportunity for obstruction by opposition parties."

Group blogs are another issue, as in Hungary group blogging is popular. As blogs can be fined if they are "edited" or written by several people, this could have a chilling effect on blogging in Hungary, where people are afraid of blogging together and risking suffering for what other people write. Mathew Lowry has written about this over on his blog.

I won't go into the law in greater detail (other blogs and the OSCE have done a good job - the OSCE Report is 57 pages long, after all!), but the vagueness of "appropriate" information, the vagueness of the idea of content and the political nature of appointments are a threat to freedom of the press and to blogging, so I would encourage everyone to join in with the Blogging Action, and raise awareness through blogs and Tweeting. Though the Presidency has argued that this is a purely national matter, and the presidency shouldn't be "hijacked" by it, but the freedom of the media is fundamental to democracy, and we should be concerned about such laws taking root in other countries. Not only is it a question of how we can ensure the same standards of rights, openness and democracy in Member States after they've joined the EU, but just as the presidency used the argument that none of the measures were not found in other Member States, tolerating the erosion of rights in one Member State makes it easier for such erosion to spread.