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Rule of Law Backsliding in the European Union

14 July 2021

Q&A with Hungarian scholars: What should have been tackled within and beyond Article 7?

“After 10 years the authoritarian project is finished. It is not like a dictatorship of the past, it’s a new kind of authoritarian rule where the Hungarian governmental forces can efficiently hide their real character. It has a paralyzing effect, because formally it used the legal framework and institutions but without keeping any of the European values and European legal culture behind it.” – Zoltán Fleck

The recent implementation of the anti-LGBTQI+ laws by the Hungarian government shed light on the current Rule of Law backsliding in Hungary. The law was the final straw and prompted a hearing by the European Council following on from a submitted proposal by European Parliament to trigger Article 7 on the basis that there was “a clear risk of a serious breach by Hungary of the values on which the Union is founded.”

On the heels of the meeting in Luxembourg, NHC organised a Q&A with Hungarian scholars on ‘What should have been tackled within and beyond Article 7?’ We were joined by scholars Petra Bárd, Zoltán Fleck, Ágnes Kovács and Péter Sólyom. The four have been working together for more than a year now as part of a seven strong Hungarian academic expert group aiming to illustrate the extent of the systemic destruction of the Rule of Law in Hungary. At the event, the speakers in turn outlined the systematic deficiencies with regards to democracy, Rule of Law and the consequent status of individual human rights. The “dismantling of constitutional institutions,” the problematic state of NGO’s and “diminishing pluralism in the Hungarian scene” were just some of the current issues that were introduced by Fleck, who first took the floor. The discussion was moderated by NHC’s Executive Director, Pepijn Gerrits.

What once more became clear during the session was that the LGBTQI+ laws that were recently adopted are just the tip of the iceberg. Fleck explained that the Hungarian government has refined the “technique of diverting the European Union (EU) viewpoints and gaze” as well as making extensive use “of cherry-picking technique in any reproaching process by the EU institutions.” Kovács also painted a rather grim picture. Stories of new scaremongering tactics utilised by the government, as well as a concerted effort to criminalise immigration and, in an unprecedented move, criminalise homelessness. Unfortunately, on top of increased censorship of journalists, the work of NGOs also remains limited on this topic.

Although this is not the first time that the backsliding of the Rule of Law in Hungary has been brought to the fore, the extent to which the Hungarian government has chipped away at the EU values of “rights of citizens, autonomy and freedoms” has become increasingly problematic without sufficient action being perceived from the EU institutions.

The “European commission can’t win against the Rule of Law backsliding alone.” – Pepijn Gerrits, NHC Executive director

As moderator, Gerrits emphasised the importance of a collaborative effort, saying that we must “continue the work for a joint response,” as only together – as the Commission, the Member States gathered in the Council, the institutions and civil society –  can we stop the rapidly deteriorating Rule of law situation in the EU. In the end, “there are tools, there are means, it’s a matter of using them, political will and being timely.”

Actions that can be taken by members of civil society and the other member states to remedy the rule of law backsliding were answered in the Q&A: What should member states and civil society do to push European institutions to react stronger and faster? Fleck advised that we must use a holistic approach to solve the Hungarian question. We “must look at the whole picture” as the use of legal processes alone is not enough. Kovács, in line with Gerrits, promoted collaborative action amongst the Hungarian citizens and different actors within civil society. They also highlighted the important work of NGOs in Hungary who are “bringing their cases before court, and institutions, in order to show the international audience that these formally independent institutions are no longer independent.” The implementation of a financial mechanism which could allow civil society organisations to bypass the government and apply for grants directly to the EU was the suggestion of Sólyom.

The final question of the Q&A looked to the future and asked the panellists: Is there anything that gives you hope with regard to the Hungarian question? The academics offered us the following silver linings:

On an EU wide level there are “many lessons to learn for the EU from the situation in Hungary.” – Ágnes Kovács

The Hungarian question should be used as mirror for other member states. For addressing the issue in Hungary, Bárd pointed to the general elections that are being held next year in Hungary. Sólyom added onto to this that “opposition politics seem more effective now, but we don’t know [what will happen] under the current constitution.” Kovács added that ultimately the “transition back to democracy depends finally on the Hungarian voters.” In addition, Bárd pointed to the fact that “the fakeness [of Rule of Law and democratic institutions in Hungary] is finally acknowledged by European players.” The various tools that the government has been utilising to mislead and divert the gaze of the EU have now been revealed. Now that the fog has been lifted, Fleck added that:

“My hope is that clearing the picture in the EU scene is a good option for a political and legal backing of the democratic rebuilding the Hungarian rule of law.” – Zoltan Fleck

To be continued

The difficulty of this process, however, should not be underestimated. As Slovenia has taken over the rotating presidency of the Council of the EU on 01July, Ljubljana has picked the Rule of Law as a priority, and has committed to bring (largely deadlocked) Article 7 proceedings against Hungary and Poland back on the agenda. The Slovenian presidency also proposes the establishment of a European foundation for constitutional democracy, that would “fill the gap in the monitoring of compliance with the rule of law by EU institutions, whose operation must also not be beyond external control”. It remains to be seen in what direction this will push both the Article 7 proceedings and the discussion on constitutional identity, as EU civil servants, CSOs and political analysts remain wary of Slovenia’s own decline when it comes to civic rights.

At the same time, the situation between Poland and the EU is reaching an increasingly worsening deadlock, as the country’s constitutional court are looking to reach a decision on whether national or EU law takes priority.

The issue of backsliding on Rule of Law in the European Union, and the measures possible to combat, are therefore (thankfully?) to stay top of mind in Brussels for some time to come.

Watch the edited recording of the Q&A with Hungarian academics here:

Continue to follow the discourse via our website and social media channels, and stay up to date with the latest developments on #RuleofLaw #backsliding and #Article7.