The EU and Hungary: Locked in a tango

This is a story about the EU’s struggle to address the challenges raised by a recalcitrant Hungarian government and an apparently satisfied electorate that doesn’t want the EU to tell them how to define democracy.

Foto: Creative Commons/ Phil Moore

‘We will not be a colony!’ was the theme of the biggest demonstration held in Budapest since the fall of communism. The so-called ‘Peacemarch’ took place on 21January 2012, and was organized by right-wing journalists and intellectuals. They fanatically believe that Prime Minister Viktor Orbán is the only Hungarian politician looking out for the country’s interests, and that the European Union needs to mind its own business, rather then meddle in the affairs of Hungary. Holding an ornamental edition of the country’s new basic law above his head, Zsolt Bayer, a journalist and founding member of Orbán’s Fidesz party, cried „We gently tell the European Union: this is our Constitution!”

The new Constitution was rushed through Parliament in about a month, without extensive consultation with opposition parties. Bayer and a celebrating mass of more than 100,000 people (the figure depends on which media you rely on) sent a signal to Brussels: don’t mess with us.

Although the European Commission’s main concerns are about the fundamental laws that are attached to the Constitution, let me mention a few other changes introduced by the Constitution itself. The document renames the Republic of Hungary to simply Hungary. It emphasizes the country’s bonds to ethnic Hungarians living abroad. It defines marriage as the union of a man and a woman, states that human life will be protected from conception, and creates the possibility of life imprisonment without the possibility of parole. Furthermore, it excludes sexual orientation as class protected from discrimination. It strips the Constitutional Court of power, reducing its jurisdiction. Its judges can no longer review any law that deals with the budget, and individuals can no longer question the constitutionality of a law. The constitution also creates the National Judicial Office, whose president is the almighty „czar” of the judiciary.

Orbán sees the new Constitution as a long-delayed completion of the process of transition from Communism to liberal democracy. Fidesz’s 2010 overwhelming victory –  which gave him control of two-thirds of the seats in the Parliament – came at a time when most people in Hungary wanted change. Eight years under Socialist-led governments were dominated by failed reform attempts and soaring corruption. Meanwhile, the economy was in such a poor state that it needed an IMF bailout to avoid bankruptcy, as the global financial crisis hit the country in the fall of 2008. Social tensions were ignored,  allowing the far-right Jobbik party to gain votes in traditionally left-leaning constituencies, and it became the third largest party in Parliament.

Radical transformation

Yet instead of using the opportunity for reconciliation and to unify a deeply divided society, Orbán embarked on a radical transformation of the country. New laws were rushed through Parliament with limited consultation.  The new legislation introduces de facto Fidesz control over institutions that are supposed to be independent. These include the judiciary, the central bank, budget and audit watchdogs, and the agency that regulates media. At the same time, the new laws bend electoral rules to favor Fidesz. Many critics say that the new laws are examples of Orbán’s desire to capture the state on behalf of Fidesz. For  example, the newly appointed head of the National Judicial Office, who is elected for nine years with a two-thirds majority and has the power to delegate cases to any court in the country, and who can replace any judge in the country without consultation, is the wife of a Fidesz MEP, Jozsef Szajer.

Over the course of last year, the European Commission expressed concern about the new laws, and asked the government numerous times to reconsider. Orbán and his government refused. In the beginning of 2012, there was genuine international concern, not only in the EU, but also in the Council of Europe and the United States, which were uneasy with the new state of Hungarian democracy. The European Union was suddenly faced with a government that apparently did not share its view on the definition of independent institutions and checks and balances. Following the cases of candidate Slovakia in mid-90s (Mečiarism), and Austria in early 2000s when the extremist party of Jörg Haider became part of the government, the EU once again faced the question: what if a member state does not respect EU principles and standards?  Brussels needed to act.

Exceptional situation

The wrangling between the European Commission and Hungary is an exceptional situation, as this has never happened before, admits a source at the European Commission. While the concern for Hungary’s democracy was genuine in Brussels, there is little the Commission can do, other then to make sure that the member state’s legislation is in line with EU law. This type of reasoning serves the government well. Orbán and his people claim that  there is nothing wrong with the new framework of the Hungarian democracy, only technical details that need to be corrected. A Hungarian MEP, Jozsef Szajer – who apparently partly drafted the new constitution on his iPad – even insisted in January that it is a major accomplishment that there are only a handful of laws that the Commission is examining, considering the fact that the parliament had adopted almost 300 new ones.

The issue of the retirement age of the judges is a good example of how the Commission struggles to keep the Orbán government accountable. New legislation lowered the retirement age for judges from 70 to 62, ostensibly to bring them in line with other public servants. More then 200 judges were forced out of their benches. The government insists the case is merely a pension scheme issue, while critics suspect it is a tool to get rid of judges the Fidesz government doesn’t trust and gives the party an opportunity to stack the courts with loyal judges. The Commission obviously cannot prove this political intent. Instead, it could only cite an anti age-discrimination directive to force the government to explain its actions.

This case is one of the three infringement of power cases launched in January by the Commission, which also is looking into the unparalleled powers of the new head of the judiciary. Jose Manuel Barroso, president of the European Commission, took an unprecedented step when he stated in a January speech to the European Parliament in that EU law must be respected not only in letter, but in spirit. The Commission, as guardian of the treaty, had never gone beyond insisting on the letter of EU law. By emphasizing that the spirit of the law needs to be respected as well, the Commission entered new and highly politicized territory. The letter is objective, the spirit can be subjective.

Government is elected, Commission is not

The political quarantine used against Austria during the Haider years remains a bad memory in Brussels. The campaign turned  Austrians against the EU, and achieved little at the political level. Consequently, the Commission is choosing its steps very carefully so as not to alienate Hungary. Orbán, however, is cleverly exploiting the situation. In meetings with EU officials, he emphasizes his commitment to the EU, while insisting that the attacks from Brussels are making it increasingly difficult for him to keep his party and voters in the pro-European camp.

Yet at rallies and interviews he questions the authority of the EU over the internal affairs of Hungary. In a recent Frankfurter Allgemeine Sonntagszeitung interview, Orbán noted that while his government is elected, the European Commission and Barroso are not. In a speech on the 15th of March commemorating the 1848 revolution, Orbán compared Brussels to Moscow, provoking a harsh reaction from the European Commission, which said that those who compare the two do not understand democracy. It doesn’t take much for the traditionally euroskeptic right wing, and indeed the general public, to discredit the „unsolicited help” of Brussels as a rude intrusion into national sovereignty. In Hungary, Brussel’s actions were widely described as a political attack orchestrated by the “international left,” a term of derision Orbán uses frequently.

Leftwing political forces in the European Parliament have sought to invoke Article 7 of the Treaty on the EU (created after the debacle of trying to alienate Haider by alienating Austria), which ultimately suspends the voting right of a member state where there is risk of systematic human right violations in such a state. These efforts have been met with outrage in Hungary. Hungarian Socialist MEPs who in February drafted and supported an EP-resolution calling for a committee to investigate whether there is enough grounds to start an Article 7 procedure were branded as traitors.

If you want change, you need Orbán

Yet the EU and Orbán are locked in a tango: the actors in the EU institutions understood that without formidable political opposition to Fidesz, if one wants to get something done in Hungary, one needs to deal with Orbán. Any talk of a Berlusconi-style scenario in which the EU pushes out an elected leader is silly. On the other hand, Hungary (whose credit rating is at junk level, and whose borrowing costs are soaring) has asked for financial assistance from the EU and the IMF. The negotiations on the credit haven’t begun because of the Commission’s concern – among other things – about the independence of the Hungarian central bank. For now, the best bet of the Commission is to use possible credit as a bargaining chip for political concessions. It is a highly controversial and potentially dangerous tactic. “It is politically risky, we know it,” admits a source in Brussels.

The controversy surrounding Hungary has also drawn attention from such usually low-key institutions as the Council of Europe and the Venice Commission, which oversees the rule of law and the state of democracy in its member states. The COE and the European Commission are in close contact, coordinating their requests for amendments to the controversial Hungarian laws.

The Orbán government poses a challenge to the European Union, which still struggles to answer the ultimate question: what if the voters in a member state agree with undemocratic decisions of their own government? Court battles and fierce monitoring are in sight for Hungary, but doubt remains: the Commission might be able to force the Hungarian government to respect the letter of EU legislation, but what will happen to the spirit of the law?

Eszter Zalán

Eszter Zalán

Eszter Zalan is a reporter at the Brussels-based EUobserver.