In emergency situations as the one our world is experiencing at the moment, even the most stable democracy is forced implement unpopular and far from perfect measures in order to guarantee the security of its citizens. Governments in Europe have adopted measures that have undoubtedly entailed sacrifices, both economically and socially. As well, there have also been many examples of virtuous behaviour, cooperation and joint efforts undertaken, bearing in mind the values and principles on which the Union itself is based. At the same time, however, there have also been some extreme reactions, not at all in line with the spirit of acquis Communautaire, by certain countries which have always struggled to fully comply with those principles and values of which the Union is held as an example throughout the world. “To the most perfect of dictatorships I shall always prefer the most imperfect of democracies”, said Sandro Pertini. But it is precisely in times of crisis, such as this, that we must not lower our guard.
Last March 30, the Hungarian Parliament, made up of two-thirds of the Fidesz party, approved a law for the protection of the country from coronavirus that provides for the granting of extraordinary powers to the government, led by Prime Minister Viktor Orbán. The mandate, which allows the Hungarian leader to rule by decree, does not foresee any time limit. This is a measure that risks the further undermining of the rule of law in Hungary, including measures, such as the centralised control over local autonomies’ decisions, the suspension of elections and severe restrictions on freedom of the press. In particular, it provides for imprisonment of up to 5 years for the publication of news – facts considered false or distorted – that interfere with the protection of the country. The new measures can be lifted only through further parliamentary consultation by a two-thirds majority and with a presidential signature.
This provision is actually an extension of the state of emergency declared by the government on March 11 in response to the epidemic. While drastic measures are required to combat a crisis of this magnitude, in the case of Hungary, the measures remove the already few remaining constitutional counterbalances. The Constitutional Court, the body responsible for monitoring the activities of the government, would, in fact, have the prerogative to amend the law and suspend the measures adopted. However, it has been progressively deprived of its powers in recent years from a legal point of view. As for its composition, it has changed in recent years as a result of the systematic replacement of judges by figures closer to the government.
In the name of the emergency, the separation of powers, freedom of the press and association and the independence of the judiciary have been compromised. Circumstances which constitute a complete violation of the common values provided for in Article 2 of the Treaty on European Union (TEU) and on which the Union’s juridical order is based. The risk is that Orbán’s conduct may set a precedent and spread to other countries, putting the Union in the position of having to contain an additional virus and implement a proper political quarantine.
The tool available in this case is the procedure under Article 7 TEU. On a proposal from two thirds of the Member States, the Commission or the European Parliament, the Council may verify the presence of serious infringements and proceed with the activation of the suspension clause provided for in the Treaty. However, as in previous cases, the Council has, instead, opted for a softer, more diplomatic route, preferring cohesion to fragmentation. This attitude has attracted a great deal of criticism from the European Parliament, which last autumn had already produced a resolution calling on the Council to assess the existence of serious violations on the part of Hungary. In addition, a tougher approach would require drastic measures such as the suspension of certain rights and prerogatives of the country as a Member State and the suspension of voting in the Council, for example. However, the latter would require a unanimous vote, quite impossible due to the likelihood of Poland vetoing the vote. For the time being, the Council’s action has involved identifying the procedure for future hearings, which follow up those of September and December 2019, and which, however, had not seen the participation of the Parliament, undermining its effectiveness and efficiency.
As far as the Commission is concerned, Berlaymont has already undertaken numerous proceedings against Poland and Hungary as early as 2015, all relating to the need to establish a serious breach by the two countries of the values defined in Article 2 of the TEU. In the past few days, Commission President Ursula Von der Leyen has expressed concerns about the latest events. While reiterating that in this unprecedented situation, it is legitimate for Member States to take extraordinary measures to protect their citizens, “it is of the utmost importance that these measures are not taken at the expense of our fundamental principles and values, as laid down in the Treaties”. Von der Leyen, while not referring directly to Hungary, also stressed that the European Commission will take the necessary measures to monitor the emergency provisions introduced in all Member States and their implementation. In line with the Commission, 13 European countries, including Italy, signed a joint declaration last April 1, also calling on the General Affairs Council to address this issue.
Much harsher reactions have come from the Group of the European People’s Party (EPP), to which Fidesz belongs. Already back on March 20, the parliamentary group had taken the decision to suspend the party and, following the new law introduced by Hungary, as many as 13 parties that are part of the group have signed a letter requesting the President of the EPP Donald Tusk to proceed with the expulsion for serious violations of the founding principles of liberal democracy and European values (ex-Article 9 of the statute of the group). In a statement, Mr Tusk had already described Mr Orbán’s conduct as ‘politically dangerous and morally unacceptable’.
The next European People’s Party meeting, scheduled for June, will have to give its opinion on this issue and until then, therefore, there will be no significant developments in terms of decisions taken within the group. There is no doubt that a stronger reaction is expected from the Council as well as greater transparency and inter-institutional cooperation to ensure as much as possible that, at such a difficult time, it will not be democracy that ends up with the bill.