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Eszter Harsányi-Bélteki – A call for separation or divorce: A comment on the Resolution on the situation in Hungary adopted by the European Parliament on 10 June 2015

On 10 June 2015 the European Parliament adopted a Resolution on the situation in Hungary. This Resolution does not only follow the ‘Tavares Report‘ of the same body, but a list of opinions and reports from other bodies, such as the Venice Commission, cases in the Court of Justice of the European Union and the European Court of Human Rights and several international calls for action regarding the various political and legal practices adopted by the Hungarian government since 2010.

Whilst these calls for action have been almost continuous so far, they have not resulted in such a prompt and strong response by the European Union as the ones following the recent statements made by the Hungarian Prime Minister, Viktor Orbán, calling for a debate on the introduction of the death penalty. The swift response from the Commission to such a statement and the adoption of this Resolution demonstrates that Hungary has now seemed to have crossed the line.

 

The Resolution of 10 June 2015

Two key issues are placed in the focus of the Resolution that were also subject of the plenary debate held in the European Parliament on 19 May this year: the reintroduction of the death penalty and the public consultation on immigration.

 

The re-introduction of the death penalty

Following the murder of a shop assistant in a tobacco shop in Kaposvár on 28 April, the Prime Minister called for the question of the death penalty to stay on the agenda during a press conference. This raised alarm bells in the various institutions and Member States of the European Union as many claimed that this might mean that the Hungarian government is considering the re-introduction of the death penalty in the country. Two days later, the President of the European Parliament issued a statement following his telephone conversation with Mr Orbán, in which he stated that he was assured that the re-introduction of capital punishment was not in the pipelines, merely a debate about it would be “put on the agenda” and the government “will respect and honour all European treaties and legislation.” On 8 May – contrary to paragraph F of the Resolution that states 1 May – the Prime Minister on one of the national public radio argued that the re-introduction of such penalty would fall within the sole competence of the Member States and not the Union. He also further argued that the death penalty should be reintroduced if those who are unable to defend themselves cannot defend themselves without the death penalty.

It was not only the European Parliament from the main institutions of the European Union that adopted a firm stance against the possibility of the introduction of the death penalty. Whilst the European Council and the Council have not issued any official statements about this issue so far, First Vice-President of the Commission, Frans Timmermans, stated during the plenary debate in the European Parliament that such an act would immediately trigger the enforcement mechanism laid down by Article 7 TEU, which was also later supported by the President of the Commission, who in an interview with Süddeutsche Zeitung stated that such action would be ‘a reason for divorce.’

With the Parliament and the Commission having adopted similar approaches to react to this issue, it may come as no surprise that the European Parliament in paragraph 9 of the Resolution urges both the Council and the European Council to discuss the recent developments in Hungary and adopt their official positions about these.

 

Public consultation on immigration

In April 2015 the government launched a public consultation on immigration and terrorism in Hungary, which was justified by the rise in the number of illegal immigrants to Hungary by twenty times in recent years.

While the Parliament Resolution in paragraph G highlights that such a consultation may serve as ‘an important and valuable tool for governments to develop policies that can count on the support of the population’, the actual content of the questionnaire has been the focus of the criticism of not only the European Parliament, but many other international organisations as well.

The actual questionnaire starts with three questions that ask the Hungarian population about how important they believe the spread of terrorism is in their lives, whether they believe Hungary may be the target or a terrorist attack in the next years and whether the immigration that is being handled inappropriately by Brussels is linked to the spread of terrorism. After these, the questionnaire asks Hungarians, for instance, whether they believe that those immigrants that come to abuse the Hungarian system are threatening the workplaces and livelihood of Hungarians. The last question asks whether the person filling in the questionnaire agrees with the Hungarian government in their position that instead of supporting immigration they should support Hungarian families and children.

The public consultation is also supported by a country-wide billboard campaign in which messages such as ‘If you come to Hungary, you cannot take the jobs of Hungarians!’ or ‘If you come to Hungary, you should respect our culture!’ or ‘If you come to Hungary, you need to respect our laws!’ are displayed. Since their appearance, many of these bill-boards have been painted over or have been torn down country-wide, resulting in arrests and a fundraising call for an opposition bill-board campaign that has already collected millions.

In paragraph 5 of the Resolution the European Parliament not only denounces this consultation and bill-board campaign and stresses that the content of the consultation is ‘misleading, biased and unbalanced, establishing a biased and direct link between migratory phenomena and security threats,’ but also asks for the consultation to be withdrawn for violation of data protection rules as well.

In paragraph 6 the Parliament also highlights that the content of the consultation seems to ‘cast blame on the EU institutions and their policies’ for the problems that the consultation highlights, however, it fails to mention ‘the responsibility of the Member States in these areas’.

 

Reasons for divorce?

While the European Union lacks competence to ‘file for a divorce’ from a Member State, Article 7 TEU allows for a ‘separation’ of some sorts, whereby the Council ‘may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question’ in case it finds that ‘there is a clear risk of a serious breach by a Member State of the values referred to in Article 2,’ which include ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.

This mechanism could be identified with somewhat like a ‘separation’, since it effectively allows for the relationship between the Union and the Member State to be suspended. What the consequences of taking such action against a Member State, however, are highly uncertain as there has been no previous example of its application so far.

In paragraph 10 of the Resolution the European Parliament has taken quite a strong step towards the triggering of this mechanism by claiming that the recent developments have led to concerns that ‘could represent an emerging systemic threat to the rule of law’ in Hungary. Instead of forwarding a ‘reasoned proposal’ to the Council in order to activate the mechanism to determine the existence of such risk – as required by Article 7(1) TEU – the Parliament has decided to follow a different avenue.

In paragraph 11, it ‘urges the Commission to activate the first stage of the EU framework to strengthen the rule of law’ by initiating ‘an in-depth monitoring process concerning the situation of democracy, the rule of law and fundamental rights in Hungary, assessing a potential systemic serious breach of the values on which the Union is founded as per Article 2 TEU’ and report back to the Parliament and the Council on this matter before September 2015.

The first stage of such a framework would require the Commission to make an assessment whether ‘there are clear indications of a systemic threat to the rule of law’ based on reports by recognised bodies, such as the Council of Europe and the EU Fundamental Rights Agency. If the result of the preliminary assessment of the Commission is that there is an indication to such systemic threat, it would send a “rule of law opinion” to the Member State concerned, which would be followed by a dialogue between the Commission and the Member State.

If this political dialogue would not result in satisfactory results in the Commission’s opinion, in the second stage, it would deliver its recommendations to the Member State, which would require the Member State to take actions within a set time limit.

If during the third, monitoring stage, no satisfactory follow-up action is taken by the Member State to the Commission’s recommendations, the Commission ‘will assess the possibility of activating one of the mechanisms set out in Article 7 TEU’.

The European Parliament therefore seems to wish to place the solution to the possible ‘systemic serious breaches’ to the foundational values of the Union in the hands of the Commission instead of initiating such action itself or leave it to one third of the Member States to do so. Whilst this choice may be justifiable, what is interesting to highlight is that the Council’s Legal Service shortly after the publication of the Commission Communication announcing this new Framework stated that the Commission would be acting outside its competences if it was to perform the actions outlined in the Communication and has recently devised its own rule of law mechanism to complement Article 7 TEU.

It will therefore be interesting to see what the next steps of the Commission are going to be.

If it does decide to initiate the first stage of the Framework it proposed in March 2014, it may signal that the Commission has found an alternative to the mechanism laid down in Article 7 TEU to enforce the same values. Whereas it remains to be seen how effective such mechanism, the Council may have objections to the activation of such mechanism.

The Council could argue in an action brought under Article 263 TFEU in the Court of Justice of the European Union that based on the text of Article 7(1) TEU, the Commission would be acting outside its competences to determine whether a ‘clear risk of a serious breach’ exists, as such decision could only be taken by them. The Commission, on the other hand, could argue that these actions are necessary steps in order to make a ‘reasoned proposal’ as required by Article 7(1) TEU to the Council.

When making such a decision, the Court of the Justice of the European Union could therefore also become involved in deciding what the meaning of the foundational values of the Union are.

It would therefore seem that in order to effectively address ‘serious breaches’ or a risk of these to the foundational values of the Union, the various institutions of the Union would have to address questions about which institution has competence to act first. This could, however, easily lead to debates about ‘Who should act?’ instead of ‘How the Union should act?’

While these arguments are taking place, the way to ‘separation’ could become more challenging by allowing the different Member States to interpret the foundational values of the Union differently, even illiberally.

Eszter Harsányi-Bélteki

PhD Researcher, Durham Law School

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