European Union and Hungary: towards a new “Haider” case ?

(Original IT – translation still to be revised)

Hungary puts at risk the Union’s values?

”Such a change among the democratic frameworks that we did today was only done by revolutions before. […] Hungarians today have proved that there is a reason for democracy. […] Hungarians today overthrew a system of oligarchs who used to abuse their power.” The new government will be modest and humble. “ (1)

Two years later, these April 2010 Viktor Orban statements celebrating the Fidesz Party two thirds majority in Parliament following the Hungarian elections, sound now very different as it is the case for the economic forecasts following the 2010 Hungarian elections according to which such an electoral result would had made possible for the Hungarian Forint to recover from the crisis from which it had been barely saved in 2008 by the International Monetary Fund and the European Union.

Now, not only the relations between the EU and the IMF seem to have reached their lowest point (at least judging from the recent interruption of the negotiations with the Hungarian monetary authorities) but even bolder critics are emerging at European level as far as the compatibility of various initiatives of the Orban Government with fundamental rights and respect for democratic principles are concerned.

The situation is so worrying to push Guy Verohfstadt, President of the Liberal Group in the European Parliament to declare that Hungary seems not to fully respect anymore the “values” it subscribed when it joined the European Union, (“values” that the Lisbon Treaty has made even more explicit (2). Hence, according to Verohfstadt the European institutions should trigger the “alert” procedure foreseen by art. 7 par. 1 of the EU Treaty (3).

It is worth noting that such an “alert” procedure may be launched by the European Parliament itself and that it is designed to verify if “.. there is a clear risk of a serious breach by a Member State of the founding values of the European Union and, if such a risk exists the Council would be entitled to formally recommend the State who has lost its bearings to come back on the rights track.

Needless to say that such an “alert procedure” is very different from the “nuclear option” laid down in the second paragraph of the article 7 where the Council could even suspend a Member State voting rights if “a serious and persistent breach” of European Values has been ascertained.

Yet the mere fact of evoking the “alert” procedure has already led the European Parliament’s political groups, to position themselves as in previous cases by mirroring the political position present at national level (situation which will make difficult to reach the third majority needed in the European Parliament to vote the request the Council to address formal recommendation to Hungary).(4)

The European Parliament debate on this issue will take place during the January Plenary session in Strasbourg then the competent parliamentary committee could start its work as far as the European Commission has shown that there is ground to proceed and the Conference of Presidents of political groups consider that a formal report should be prepared following the proposal of the ALDE President Verohfstadt.

All that having being said on procedural aspects, it is worth recalling which have been the main concerns raised by the recent Hungarian initiatives.

Pluralism should be Safeguarded in Hungary ….

The first issue is pluralism and freedom of expression which seem far to be adequately protected by the recently adopted Hungarian legislation.
Even during the preparatory phase the European Commission under the pressure of the European Parliament raised strong reservations about the wide powers of the Governement’s appointed “Media Commissioner” which should grant a “balanced” information, failing which very high fines could be imposed to broadcasters operating in the territory of Hungary. Other issues were the heavy burden of formalities required by the broadcaster to be registered, the weak source’s protection for journalists, the rules on defamation, the weak data protection.. These and other aspects have been thoroughly discussed between the Hungarian Minister, the members of the Parliamentary committee and Commissioner Kroes,beginning of 2011, so that the draft legislation under the Commission pressure was partially amended. Therefore the amendments were more of cosmetic nature so that when the law was challenged before the Hungarian Constitutional Court the Judges ruled on 19 December 2011 repealed some of the most controversial rules (such as the rules on the Media Commissioner and the obligation impose to the Journalist to reveal their sources).

But Media pluralism should also be protected in practice and wide reservation have been raised also on the Hungarian administration decision to reassign three radio frequencies, taking one of them from the country’s largest opposition radio station, Klubradio. The European Commission has then decided to verify if the licensing procedures has been objective, transparent, proportionate and above all, non-discriminatory as required by the EU relevant legislation.

… but also in the rest of the EU.

Regrettably Media pluralism is, since years, under threat not only in Hungary but also in other EU countries and the latest events have relaunched in the European Parliament the broader issue of protection of pluralism in the European Union. Since years the European Parliament is pushing for european-wide binding standard to prevent future “incidents” in this domain. This request dates back in 2004 when the Strasbourg Assembly inspired by an Italian Constitutional Court ruling claiming that media pluralism was not granted in the country, requested the Italian authorities to reform the Italian media law (as it later happened with the so called “Gasparri” framework law). By the same token the European Parliament made a comparative overview also in the other 14 Member States and urged the Commission to establish a new legal framework protecting media pluralism in the European Union.

However, the Brussels Executive started working on this issue but with extreme prudence (also due the EU Member States lack of enthusiasm and the strong opposition of the EPP, the main political group in European Parliament which was minoritized on this issue). Moreover legal and institutional problems have, since the beginning, been raised such as the lack, at that time, of a clear legal basis in the Treaties on which to build an EU binding legal framework for media pluralism out of trans border freedom of services .

Of course, the legal situation in 2012 has dramatically improved compared to 2004, since pluralism is now explicitly mentioned between the EU “values” and is moreover outlined in the Article 11 of the EU Charter which is now binding as the Treaties.
Under this perspective “pluralism” should be taken in account not only by the Court of Justice but also by the European legislature no matter of the legislative domain at stake.

So, after the Lisbon Treaty, it could be now theoretically possible to frame an European Union legislative strategy which could protect pluralism through a combination of legal bases connected to each other notably when the issues at stake are of transnational scope (such as the Internet framework).

Under this perspective also the Commission could now build on the Hungarian case to relaunch its works in this domain such as the creation of a working group of several commissioners inside the Commission, the revival of the road-map for pluralism, which already provided, among others, the establishment of an European-wide monitoring system founded on a comparative view of the national legislation (5).

The Hungarian Constitutional reform in the context of a new EU-wide public space.

The second, perhaps even more serious problem, is linked with the constitutional reform entered into force on January 1st, 2012 and by the adoption by the Hungarian Parliament of the thirty implementing “cardinal laws”.

The first European Institution raising doubts on the compatibility of the new Hungarian Constitution with EU values has been the Legal Affairs Committee of the Council of Europe Assembly which asked an organism of renowned constitutional experts (the “Venice Commission”) to analyze the new draft Constitution.
The “Venice Commission” first analysis , submitted also to the European Parliament, identified several legal weakness of the draft text such as:
– the fact that the main sensitive issues were referred to “Cardinal Laws” to be adopted by a two third majority (which will be very hard to obtain in future) so that some essential policies in the cultural, religious, moral, socio-economic or even just financial domains would had been “cemented”;
– the Constitutional Court limited powers in fiscal and budgetary matters (which was interpreted as a sort of Government retaliation to a 2011 Constitutional Court ruling in this domain);
– the lack of a credible protection at constitutional level of judiciary independence;
– the violation of international standards dealing with life imprisonment;
– the relative weakness of fundamental rights protection at constitutional level (even if a reference to the EU Charter has been inserted in the Constitution Text).
The “Venice Commission” analysis evoked also the Constitution preamble reference to the protection of Hungarian minorities outside the national territory. According to the Council of Europe legal experts such a reference could be a possible element of tension in relations with the neighboring Countries (as it has been the case in 2001 during an Hungaro-Romenian dispute concerning the same kind of Hungarian law).

Regrettably these Venice Commission concerns have been confirmed by the text of the controversial Cardinal Laws adopted by the Hungarian Parliament in the following months.

The Hungarian Government strongly supported their compliance with the EU law but the arguments raised didn’t convinced the European Parliament and the European Commission.
The latter has recently taken some formal initiatives such as a letter sent, beginning of 2012, by Mrs Reding, Vice President of the European Commission by which some precise issues have been raised. This was the case of the Hungarian decision to drastically lower the retirement age for high level judges or the lack of true independence the National Data protection. Even stronger reservations have also been raised by the European Commission Barroso as far as the independence of the Hungarian Central Bank is concerned (which appears contrary to the Article 130 of the Treaty provisions (TFEU).

On January 17th the European Commission will assess its final position and announce it not only to the Hungarian government but also to the European Parliament. In the meantime also the Council of Europe Assembly will debate these issues and is more than likely that the Venice Commission will be asked to further elaborate its initial analysis.

The alert procedure under Article. 7 para.1 as an appropriate framework for strengthening the European common public space?

All that having been said it could be interesting to understand the reasons why European Parliament and the Commission follow different paths when confronted to situations where the preservation of European values could be at stake.

While the European Parliament focus its debates on political aspects and try to highlight general positions as it has already done on Media Pluralism in Hungary (see the 10 March 2011 Plenary resolution) the European Commission prefer to avoid the slippery slope of political debates on general concepts like the ones on “European values” which are hardly legally enforceable (7) even if they are essential to preserve a close relation between the members of the same political community.

The Brussels Executive prefer the pre-judicial approach which ultimately rely on the Court of Justice intervention (8). Consistently the Commission focuses its analysis on specific cases of poor implementation/non implementation of the European law (such as the ones listed in the Vice President Reding and President Barroso letters to the Hungarian authorities.

Thus, by so doing, the Commission avoids public confrontation with Member States on symbolic issues but ultimately deprives their citizens of the complementary protection which they can aspire as European citizens.

That having been said it is also true that Member State which are under scrutiny consider that art 7 is a sort of undue inference in their internal political life, a challenge of democratically elected national governments and a violation of the EU Institutions obligation to respect the Member States ‘…national identities, inherent in (their) fundamental structures, political and constitutional ” enshrined in Article. 4 TEU (9).

These kind of arguments are therefore displaced when “alert procedure” is at stake (art. 7.1 TEU) as it more a sort of “moral suasion” than a form of political or legal sanction. Such fears seem excessive, notably in an European Union which by definition act in a framework of “shared competence” as far as they really share the same values and destiny.

That having been said the Commission reluctance against art 7 could be an expression of “political realism” to avoid a defensive position by the State under scrutiny which could harden their positions rather than closing the gap between the EU and the State concerned. This approach is the same taken by the Wise Men Report which in October 8th 2000 drew to an end the so called “Haider’s case”. According to that report the (informal) ostracism declared by fourteen Member States against the fifteenth was “counterproductive”.
To remind the case the 14′ initiative was driven by the fear that the new Austrian Minister Haider of well known xenophobic positions could block, in his capacity of member of the Council of the European Union, the adoption of legislative proposals on non-discrimination, requiring the unanimous vote in the Council (10).

Was the Haider’s case really counterproductive? The Wise Men assessment is contradicted by the fact that during that period it has been possible to adopt in record time (with the Austrian vote) the two first Directives on combating discrimination (Directive 2000/43 and Directive 2000/78) to draw to a positive end the European Convention on the European Charter of Fundamental rights, and, last but not least, there has been a loss of popularity of the Haider Party (FPO) and its consequent exclusion from the Austrian government.

All in all it is probably more appropriate that the European Parliament play the main role in the “alert procedures” because the ultimate objective should be to strengthen a common political space transcending national boundaries and building up ” political families ” and even European political parties as foreseen by the art. 10 of the TEU which has been ratified by all the national Parliaments (11). Following this approach it should not be considered outraging or counterproductive or a crime of high treason the result of mutual evaluation exercise as it daily happens (though with some tension) in many sensitive domains such as in the framework of the Schengen cooperation or in the fight against transnational terrorism, and in an even greater and deeper way for the economic and monetary union.

Should then financial securities treated more seriously than the values ​​of democracy, freedom of expression and human dignity?
The construction of a true European political community and identity require a strong support by the European and national institutions notably at parliamentary level as Parliaments derive their legitimacy by the direct vote of all citizens.

By complying with this view where national and European identity should strengthen each other; inclusiveness is then essential also in the framework of the “alert” procedure which should be conducted with mutual respect by avoiding polemics driven only by the search of some political visibility. This will be the real counterproductive effect for the EU as community of values which should be the everyone’ final objective.

Emilio De Capitani

NOTES

(1) Citations from http://www.euractiv.com/elections/voters-give-revolutionary-victory-hungary-s-centre-right-news-482020 and from http://www.guardian.co.uk/world/2012/jan/08/hungary-unaffordable-mortgages-forint

(2) TEU Article 2 (bold words have been added by the Treaty of Lisbon)
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

(3) TEU Article 7
1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.
The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.
The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.
4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.

(4) In several cases the EP has evoked the possibility to launch an “alert” procedure according to art. 7 of the TEU starting from 2000 during the parliamentary proceedings dealing with the existence of the “Echelon” global interception network (2000-2001), in 2001 when it condemned notably the violent behavior of the police at the G8 in Genoa, in 2004 in the survey on the respect for pluralism in Europe and particularly in Italy the and in 2006-2007 when examining the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners.
The European Parliament has made reference to art. 7 of the Treaty in other resolutions homophobic or racist behavior or grossly discriminatory (eg in the case of the Roma population) by members of the Governments of member states to initiate the procedure without ordinary because of the difficulty of bringing together the aforementioned two-thirds of the votes.

(5) Following the Annex VII of the Rules of Procedure of the European Parliament, the Committee on Civil Liberties (LIBE) is responsible for the procedure of “alert” (art. 7 p.1) and the Committee on Constitutional Affairs (AFCO ) is responsible in case of sanctions that could deprive the member state the right to vote. Under the Treaty of the European Parliament can ‘take the initiative only if the alert procedure and must still vote with the maggiornaza two-thirds majority representing at least one more member.

(6) Taken from http://www.neurope.eu/article/commission-serious-about-media-pluralism: “The European Commission Is Establishing a Centre for Media Pluralism and Media Freedom in Florence with a € 600.000 grant to the European University Institute’s (EUI), Robert Schuman Centre for Advanced Studies. Starting in December 2011, the center will Develop new ideas on how to Ensure a highly diverse and free media, and work to Enhance the quality of the reflection on media pluralism in Europe. (…) The Centre will carry out four specific activities: Theoretical and Applied Research (working paper series, policy studies, observatory on media pluralism), Debates, Education and Training Activities (academic seminars, summer schools) and dissemination of results and outcomes. ”

(7) It is worth noting that if a Member state is subject to art. 7 procedure, its citizens may also ask for asylum to the other Member States (see Protocol 24 on the right for Asylum for nationals of Members States of the EU

(8) Already in a 2003 Communication on the implementation of art. 7 the European Commission outlined the conditions triggering the alert procedure. An indirect reference to art. 7 was also made by the Council at the time of the adoption of the EU Regulation on the fundamental Rights Agency. The Council declared “The Council considers that neither the Treaties nor the Regulation establishing the European Union Agency for Fundamental Rights precludes the possibility for the Council to seek the assistance of the future European Union Agency for Fundamental Rights when deciding to obtain from independent persons a report on the situation in a Member State within the meaning of Article 7 TEU when the Council decides that the conditions of Article 7 TEU are met.”

(9) TEU Article 4
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties and their national identities, inherent in their fundamental structures, political and constitutional, inclusive of local and regional authorities. It shall respect their essential State functions, including those for ensuring the territorial integrity, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
3. Under the principle of loyal cooperation, the Union and the Member States respect, assist each other in carrying out tasks under the Treaties.
Member States shall take all measures, whether general or particular, to ensure fulfillment of obligations under the Treaties or resulting from the Union Institutions’ acts.
Member States shall facilitate the fulfillment of the Union’s tasks and refrain from any measure which could jeopardize the objectives of the Union.

(10) The legal basis for the anti-discrimination policy require the unanimity (Art. 19 TFEU, former art. 13 of the TEC)

(11) TEU Article 10
1. The functioning of the Union is founded on representative democracy.
2. Citizens are directly represented at Union level in the European Parliament.
The Member States are represented in the European Council by their Heads of State or Government and the Council by their governments, themselves democratically accountable either to their national parliaments, or to their citizens.
3. Every citizen has the right to participate in democratic life. Decisions shall be taken as closely as possible to open and close to its citizens.
4. Political parties at European level contribute to forming European political awareness and to expressing the will of Union citizens.

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