“For the first time since the Article 7 procedure was launched over a year ago, the Council delved into the substance of the issues at stake,” says Kaari Mattila, Secretary General of FIDH. “It was high time that Member States left behind procedural matters and moved on to addressing the serious concerns raised over the years by the EU House, international experts and civil society regarding a dramatic democratic backsliding in Hungary under Viktor Orban.”
Indeed, following a general hearing on 16 September, the Council convened a session yesterday under the Article 7.1 procedure focusing on the independence of the judiciary, freedom of the media and academic freedom in Hungary. EU ministers questioned the Hungarian government on its compliance with EU standards in these areas. These same issues had been raised in the European Parliament’s September 2018 resolution, which triggered the procedure by asking the Council to determine whether there was “a clear risk of a serious breach by Hungary of the values referred to in Article 2 TEU.”
The triggering of this procedure followed nearly a decade of systematic and extensively documented efforts by Prime Minister Viktor Orban’s ruling Fidesz party in Hungary to undermine democratic checks and balances and to enact a range of other far-reaching reforms deeply at odds with respect for the rule of law and fundamental rights. Years of close engagement by European institutions, independent expert bodies, civil society organizations and other stakeholders have yielded extensive evidence of the specific breaches in question as well as numerous concrete recommendations for Hungary to correct course and realign with European democratic standards. Rather than affirming its intention to comply with European and international requirements, however, the Hungarian government has instead adopted a strategy of denial, artifice and misdirection, and the situation of the rule of law and fundamental rights in Hungary has continued to deteriorate as a result.
Most recently, a highly controversial 200-page bill put forward by the Hungarian government in mid-November—without any prior consultation or impact assessment—sought to introduce significant reforms to the country’s judicial system. This raised new concerns regarding the respect for judicial independence in Hungary, adding to the ones highlighted by the European Parliament in its 2018 report and by other sources [1] . In addition to creating a new channel for packing the Supreme Court with loyal judges, the new law also creates an extraordinary right of appeal for administrative authorities to bring politically sensitive cases directly to the (already captured) Constitutional Court, thus reviving elements of a previously withdrawn legislative proposal which would have seriously jeopardized judicial independence. In these two respects, the law does not appear to have any other plausible aim than to grant the executive greater political control over the judiciary.
Yesterday, as EU ministers questioned their Hungarian counterpart on her country’s degrading situation with respect to judicial independence and the rule of law, the Hungarian Parliament - in what can hardly be seen as coincidence - moved forward with passing said bill into law. Furthermore, the routine whataboutism, provocative rhetoric and disinformation that has accompanied this process attest clearly to the Hungarian executive’s intention to not meaningfully engage with EU scrutiny.
“The Council must guard itself against being misled by the Hungarian government’s explanations and pledges to respect EU principles,” concluded Kaari Mattila. “All available documentation and evidence point to a serious breach by Hungary of the EU’s founding principles. While it is encouraging that many Member States have so far taken this matter seriously, EU ministers must now commit to taking the procedure forward, including issuing clear recommendations to the government of Hungary, with set deadlines, for its realignment with those principles.”