Renáta Uitz (Central European University)
After a few really slow months, the EU’s rule of law crisis is picking up in earnest. 2021 is starting out as the year of innovation, where inaction and creative compliance are complemented by creative resistance and overt defiance. The new iteration of the illiberal challenge targets the primacy of EU law and the principle of sincere cooperation (Article 4(3) TEU). As such, it directly attacks the vision outlined in President von der Leyen first State of the Union address that emphasized the EU being a ‘Community of Law’ built on trust and solidarity. While Hungary’s defiance was hardly unexpected, it tests more boldly than ever the willingness — and the ability — of EU institutions to withstand the illiberal challenge.
The Commission’s February 2021 infringement package mirrors this shift on the ground remarkably well. It contains:
-a letter of formal notice sent to Hungary due to its refusal to comply with the judgment of the CJEU concerning restrictions on civil society organizations enacted under the guise of transparency regulations (C-78/18) under Article 260(2) TFEU;
-a reasoned opinion concerning new Hungarian rules on asylum applications, adopted in response to the CJEU’s judgment of May 2020 that found major violations of EU law in the transit zone at the EU’s Hungarian-Serbian border (C-924/19);
-a letter of formal notice for voting against the Union position on drug policy in the UN in violation of EU law.
As a closer look at the above incidents suggests, the Union will not be able to lawyer its way out of this challenge due to the sheer pace of old-fashioned infringement action. Letters of formal notice and reasoned opinions do not interfere with the daily work of blatantly illegal — and deeply corrosive — measures that target the premises of the Union as a self-governing political community of European states. As the formal infringement dialogue continues at its normal pace, it does not halt the illiberal challenge: it normalizes illiberal democracy into everyday politics within the EU.
Hungary: from silence to creative resistance and strategic defiance
Hungary’s silence about the CJEU judgment on the NGO law is matched by its creative compliance concerning the judgment finding a violation in new rules of higher education (C-66/18). In response to a question by an MP in January 2021 the Ministry of Innovation and Technology disclosed that
following the successful conclusion of the dialogue with the European Commission the government will comply with the judgment of the CJEU in due course and according to the interests of the Hungarian people. In doing so we will have to abandon one of Europe’s most liberal regulations for a more rigid regulatory framework of another European country.
As an instance of creative resistance, consider the fate of the CJEU’s judgment from May 2020 concerning conditions of detention in the transit zone. Following the instant reaction of PM Orbán himself, calling the judgement an element of a ‘coordinated attack’ on Hungary, in a few days the government announced the closing of all transit zones. This move was complemented by new legal rules that limit asylum applications through a pre-screening system, that should be initiated in Hungary’s embassies (e.g. in Belgrade in Serbia). Applicants cleared through this initial process get a special permit to access Hungarian territory for the purposes of filing an asylum request.
There was little doubt from the outset that this newly adopted legal solution violates both international law and EU law. The pre-screening process– installed in response to the CJEU’s May 2020 judgment — “undermines both the access to territory and the access to fair procedure – the two pillars of the post-World War II international legal system” in the assessment of UNHCR’s spokesperson in Hungary. In October 2020 the Commission sent a letter of formal notice, expressing its concerns about the new rules under the Asylum Procedures Directive and the Charter. This was followed up in February 2021 by a reasoned opinion, suggesting that Hungary has several years before its bluff will be called by the CJEU.
The CJEU’s judgement from December 2020 on the treatment of asylum seekers (C-808/18) was simply ignored, in a display of overt defiance. The CJEU found that drastically limiting the entry of asylum seekers to Hungary (and thus the EU) and also that the Hungarian authorities’ practice of returning asylum seekers (‘pushback’) violated EU law. According to the Hungarian Helsinki Committee, by the end of January 2021 Hungary had pushed back over 2000 arrivals in violation of the CJEU judgment. The continuing illegal pushbacks on the Hungarian border prompted Frontex to suspend its operation in Hungary in an unprecedented gesture of protest against an EU member state, a gesture that also met with Commissioner Ylva Johansson’s approval. This is largely due to the monitoring and advocacy efforts of the Hungarian Helsinki Committee that represented a number of asylum seekers in cases decided by the CJEU. While the withdrawal of Frontex is an important symbolic gesture, the Commission has yet to adopt a formal response.
The Hungarian government’s refusal to comply with the December 2020 judgment is best read in light of the reaction of the Minister of Justice, Judit Varga in a facebook post:
We will continue to protect the borders of Hungary and Europe and do everything we can to prevent the formation of international migrant corridors. Hungary will only be a Hungarian country as long as its borders remain intact. Therefore, not only our 1,000-year-old statehood but also the future of our children obliges us to protect our borders.
The Commission’s latest infringement package tackles another instance of overt defiance of EU law and the duty of loyalty that makes it work. Motivated by a sentiment of defending Hungary from adverse foreign interference, in December 2020 the Hungarian government voted against the EU position on removing cannabis and related substances from Schedule IV of the 1961 Single Convention on Narcotic Drugs in the UN. In particular, Hungary objected against ‘a scandalous intervention’ into its National Drug Policy, submitting that “the use of any drugs in Hungary is illegal and punishable. We do not want to change this in the future and we sharply reject any intervention in our National Drug Policy.”
Based on the case law (e.g. C-620/16, Commission v. Germany), it is predictable that a few years down the road the CJEU will find Hungary’s refusal to follow the Union’s position to be a clear violation of EU law, especially of Article 218(9) TFEU, and also as a violation of the presumption of lawfulness of the acts of Union institutions embedded in the principle of the rule of law (§ 85) and of the principle of sincere cooperation (Article 4(3) TEU) (§ 92, 94). Such unilateral conduct by Germany was found to harm “the effectiveness of the international action of the European Union, as well as the latter’s credibility and reputation on the international stage” (§ 98). It is unlikely that the finding against Hungary will be much different.
The road to contesting the foundational premises of EU law
Illiberal resistance and obstruction have become the normal way of doing business in the EU. What makes this new mode of creative resistance and overt defiance worthy of closer attention is the manner in which it targets the primacy of EU law and the principle of sincere cooperation — the underlying premises that make the EU work.
The Article 7 TEU dialogues have been the perfect incubator of creative resistance. The Commission’s retreat into the bureaucratic labyrinth of the annual rule of law report confirmed that the EU’s largest cohort of inhouse expertise would rather generate euphemisms around the realities of illiberal member states than call them to account. While the Parliament is keen on protecting the founding values, it is now caught in webs of inter-institutional conflict, ie the type of scenario that illiberal member states have a track record of turning to their advantage. Exhibit A: the December 2020 debacle over budgetary conditionality, wherein EU institutions and member states were held hostage by two national governments that do not wish to respect the Union’s founding values.
So far the CJEU has remained the only EU institution that is able and willing to call out violations of the rule of law by illiberal member states. To do so, the CJEU has confirmed the applicability of the Charter to instances where member states rely on exceptions provided by EU law to justify their actions (C-235/17, § 65). This is all good news for those who believe that the EU should defend its foundations — its founding values and the basic premises of EU law, ie. itself — from the chicanery of its illiberal member states.
Non-compliance with the judgments of supranational courts is the obvious Achilles heel of any and all supranational justice mechanisms. The EU’s illiberal governments practiced the art of strategic defiance in the Council of Europe, learning from the grand masters — such as Russia — on the many ways of disobeying the European Court of Human Rights.
In the EU context creative resistance and even overt defiance can reach new dimensions due to the intermingling of political and legal processes that are meant to make the Union work — as a union. PM Orbán appears to be ready to reset the premises of this venture. In a recent editorial he presented the vision of Central European countries as saviors of Europe:
Europe was created by the peoples attacking the Roman Empire at differing times, independently of each other. These nationalities built their countries on the ruins of the former Roman Empire. They adopted Latin Christianity, but did not give up their individual cultures, thereby various alloys were forged by the hammer of history.
This (magical realist) take on European history echoes the position of Minister Varga, arguing that Europe will be rescued by strong nation states, defending their own borders to defend Europe.
That this vision runs against the Commission’s take on the future of Europe is readily apparent. Thus, the Hungarian government’s newly found creative resistance and strategic defiance of EU law are meant to test the willingness — and the ability — of EU institutions to defend the fundamental premises of the Union. Such illiberal attacks cannot be dismissed as accidental or rhetorical anymore. They have to be taken for what they are: a prima facie assault on the very idea — and the future — of the Union.
by Renáta Uitz, Central European University
The views expressed in this article reflect only the position of the author and not necessarily the one of the BRIDGE Network Blog.