The Hungarian Dilemma from a Pluralist Perspective

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untitledMatej Avbelj

[This piece was originally posted on the Verfassungsblog and is re-posted here with permission.  Readers may be interested in reading earlier posts on developments in Hungary, such as those by Kim Lane Scheppele here and here.]
 
The constitutional and political developments in Hungary in the last few years have stirred a lot of controversies and also raised significant academic attention. This blog has provided not only a wonderful forum for an exchange of different views, but it has also produced original and thought-provoking proposals for tackling the Hungarian problem.
 
However, the “reverse Solange” idea, the call for the establishment of a special Copenhagen Commission, for a straightforward supremacy of the Charter and other insightful proposals, all appear to be addressing the Hungarian dilemma from within the constitutional register. This is, of course, a legitimate choice, but it is neither exclusive nor neutral.
 
As the Lindseth-Halberstam exchange in particular demonstrated, the answers sketched for the resolution of the Hungarian dilemma are heavily dependent on the assumed or the desired character of the European Union.  Without engaging with the merits of the constitutional account of the European Union and without necessarily taking sides, I would like to use this post to explore – out of intellectual curiosity – the Hungarian dilemma from a pluralist perspective.

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The UK Immigration Bill and EU law

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immigration bill and EU lawDr Iyiola Solanke

‘My government will bring forward a bill that further reforms Britain’s immigration system. The bill will ensure that this country attracts people who will contribute and deters those who will not.’

Every government in the post-WWII period has promised to reform the immigration system. Fortunately words have been chosen carefully – none promise to improve it. In times past, governments have tried to gain support for stricter immigration controls with a ‘sweetener’, usually in the form of simultaneous promises to improve integration. This trend is visible in the Queens Speech of May 8th, but the tone is quite different: previously, equality was promoted as a right; for the Coalition ‘fairness’ is a reward for those who ‘work hard’. In short, the Coalition ‘is committed to a fairer society where aspiration and responsibility are rewarded.’

Yet this fair treatment does not extend to immigrants who the Coalition plan to subject to further unfair treatment at the hands of private landlords. The intention is to impose upon landlords a requirement to check the immigration status of tenants or face heavy fines. It is not clear which of the above reform goals this is designed to address: it seems to be a general measure to disseminate throughout society a message of ‘crimmigration’ – the criminalization of immigration whereby those who cross borders are per se regarded as a security threat and subjected to constant policing and monitoring.

Many have already questioned how this duty will work, given that there is no current register of the millions of private landlords in the country. Why should they make the effort to comply, even with the threat of fines? In order to make such sanctions effective they will have to be closely enforced; surely it will undermine the Conservative goal of reducing ‘red tape’ to introduce the necessary enforcement regime? Furthermore, given that discrimination on the grounds of nationality has been prohibited under EU law since 1957, can the government introduce a measure which explicitly targets non-nationals, including those arriving from the European Union?

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Seven Days in Europe

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On Monday 15 out of 27 Member States voted for a two-year ban on pesticides thought to be harmful to bees, giving the Commission the final say on whether to approve the ban. It was passed despite fierce lobbying from chemical companies and opposition from eight Member States. The ban proposes to restrict the use of three neonicotinoids on plants and cereals attractive to bees and has divided the scientific community. Although it is argued that the ban is necessary to gauge whether bee colonies recover in the absence of these pesticides and create a strategy for the bees’ survival, some observers are worried that farmers will resort to using older pesticides that are damaging to other species.

Speculation was that the ECB will cut interest rates, reducing its key interest rate to a new record low from the current 0.75%. Data released earlier in the week indicated that German manufacturing shrank in April, and the ECB will likely seek to boost growth in other troubled Eurozone economies. Continue reading →

Thatcher’s EU Policy: A Personal Perspective

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Dr Gunnar Beck

I arrived in this country as a student from Germany very shortly before Mrs. Thatcher resigned as British Prime Minister.

I still remember that much of her party had fallen out of love with her in 1990, that she often came across as obstinate, narrow-minded, and ideologically driven, and that she divided opinion as no other politician I remember. At my college in Oxford she was almost universally and equally disliked by both my Communist and extreme conservative friends, although my college tutor Nevil Johnson whom I respected for his personally often difficult but impeccable moral rectitude, greatly admired her.  I have since had the opportunity of listening to many of her public pronouncements on the N. Ireland conflict and the miners’ strike, much of which struck me as lacking in compassion, sometimes crude, even inhumane at times. Many people  consider that her entire economic policy had disastrous social consequences and devastated entire regions of Wales, Scotland and Northern England. Continue reading →

Case Comment: Las v PSA Antwerp NV (C-202/11)

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Michèle Finck, University of Oxford

On 16 April 2013, the Grand Chamber of the Court of Justice of the European Union (hereafter referred to as ‘the Court’ or ‘the CJEU’) delivered its judgment in Anton Las. At issue in this case was a decree of Flanders, a federated entity of the Belgian State, which required all cross-border employment contracts to be drafted in Dutch, one of Belgium’s three official languages. The CJEU had to decide whether such a measure was compatible with the free movement of workers, enshrined in Article 45 TFEU.

The Court held that, while the measure at issue could have been justified by the objectives invoked by Belgium; namely the protection of a national language, the protection of employees and the effective supervision by the national authorities, the obligation was disproportionate and thus contrary to EU law. While this case raises many interesting questions, this blog post focuses on merely one of them, namely on the CJEU’s stance towards the right of a sub-national authority of a Member State to protect and encourage the use of an official language. Aspects specific to Article 45 TFEU will not be dealt with. Continue reading →

Case Comment: HMRC v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15

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Matthew Wentworth-May

Last month the Supreme Court decided, by a majority of 3-2, to dismiss the appeal of the Commissioners for Her Majesty’s Revenue and Customs. The decision followed a reference to the Court of Justice of the European Union by the House of Lords, and an important part of the decision was the extent to which the ruling by the CJEU was determinative of the appeal. The majority thought that it was not and, despite seemingly clear statements from the CJEU to the effect that HMRC’s appeal must succeed, the majority still found for the taxpayer.

 The facts

Aimia Coalition Loyalty UK Limited (“LMUK“) operates the Nectar points scheme which rewards customers by giving them points when they buy goods or services from certain businesses (known as ‘sponsors’). The customers then redeem the points in return for other goods and services (“Rewards“) from other suppliers (known as ‘redeemers’). In practice the sponsors and redeemers are frequently the same business.

LMUK is paid by the sponsors for the points it issues under the scheme, and LMUK accordingly accounts for VAT in respect of the supply it makes of issuing points (LMUK also receives a fee for providing certain other services, such as marketing services). LMUK then pays the redeemers a fixed amount (a “Redemption Amount“) for each point which is redeemed in return for Rewards. Continue reading →

Racism, Human Rights and Policing Wrongs

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Dr Iyiola Solanke

April 22nd 2013 marked the 20th anniversary of the murder of Stephen Lawrence. His life and brutal death remains an important watershed for the pursuit of racial equality in Britain, especially via the use of anti-racial discrimination law. The murder by a gang of racist thugs of a young, well educated black man who planned to become an architect touched the nation and triggered a new era in legislative action. The determined campaign of a devastated family led to the MacPherson Report which gave formal recognition to the idea of institutional racism. The acknowledgment of this idea changed the way in which law tackled racial discrimination – it lead to the introduction of a ‘public sector equality duty’ (PSED) which placed an obligation upon public authorities to promote racial equality and foster good race relations.  The last Labour government saw fit to extend this duty from race to all protected characteristics listed in Section 1 of the Equality Act 2010; last year, however, Conservative Home Minister Theresa May launched a consultation to consider its removal. Perhaps she thinks it is unnecessary? Continue reading →

Both ‘More Europe’ and ‘Less’: Some Thoughts on ‘Political Union’ and the Eurozone Crisis

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lindsethProf. Peter Lindseth

Below is an excerpt of remarks that will be delivered at the conference ‘Political, Fiscal, and Banking Union in the Eurozone?’, taking place on April 25 at the European University Institute. EUI’s Department of Economics, the Robert Schuman Centre for Advanced Studies, and the Wharton Center for Financial Institutions at the University of Pennsylvania are the conference co-sponsors. Prof. Lindseth will take part in ‘Panel 3: Political Union in the Eurozone?’

The conference organizers have asked me to reflect on various possible meanings of ‘political union’ and whether there might be a tension between ‘de jure’ and ‘de facto’ dimensions of the concept. More specifically, they asked me whether there might exist any ‘barriers to real political union within the Eurozone and what the sources of those barriers might be’. Continue reading →

Cyprus … or Why the ‘No-Demos Problem’ Defines the Policy Response to the Eurozone Crisis

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lindsethProf. Peter Lindseth

Mervyn King’s now almost legendary quip about the global financial crisis—that global banks are ‘international in life, but national in death’—applies with even greater force to the Eurozone crisis.  And the consequences are increasingly devastating for European Monetary Union (EMU), as the unfolding drama in Cyprus well demonstrates.

In each stage of the Eurozone crisis—Cyprus simply being the most recent—we have been reminded that Europe’s banks, while purportedly ‘European’ in life (and allowed to grow, regardless of location, to an apparently ‘European’ scale), are very much national in their agonistic struggles to survive, ultimately dependent on national resources (or, in the case of Cyprus, also their depositors themselves).  When viewed relative to national resources—that is, access to capital to resolve/recapitalize or even just to insure deposits—many Eurozone banks (not just those in Cyprus) are potentially bloated and dangerous monstrosities, posing huge systemic risks to the EMU as currently constituted. Bailouts coming from the likes of the EFSF or ESM—channeled as they are through national governments, subject to strict conditionality—do not change this conclusion.  In fact, by ending up on national balance sheets and thus massively expanding national debts, these ‘bailouts’ only exacerbate the problem.

European leaders stated last June that they wanted to break the ‘the vicious circle between banks and sovereigns’.  Ever since, however, the core countries have done seemingly everything they could to perpetuate the ‘sovereign-bank link’.  Their actions have ensured that the entire cost of the EMU’s flawed design is born by the countries in the periphery, via austerity, the expansion of national debt, and now potentially the destruction of peripheral banking through depositor bail-ins and capital controls. There has, in other words, been no recognition of the fault that all Eurozone countries share in the flawed design of the EMU, or of the concomitant obligation to pool resources to solve the devastating problem of ‘legacy costs’.  Therein—as the innumerable advocates of a genuine European banking union have pointed out—lies the true heart of the Eurozone crisis. Europe will apparently get some kind of single regulatory supervisor for at least part of its banking sector.  But what it really needs, as so many recognize, is a common resolution mechanism and deposit guarantee scheme backed by the full fiscal capacity of the Eurozone as a whole (i.e., unshackled from the limitations of any single member state).

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Kadi II

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Conor Gearty

Yves Bot had a long career as a senior French prosecutor behind him when in 2006 he joined the European Court of Justice as an Advocate General.  It has fallen to him to provide an advisory opinion in the seemingly interminable Kadi case, now winding its way back to the Court some five years after it first generated headlines, making the court (and a predecessor of Bot, Miguel Maduro) into near-celebrities in legal and human rights circles.

But why is Kadi going on and on?

The first decision in Kadi and Al Barakaat International Foundation v Council and Commission (on 3 September 2008) made such dramatic news because it as good as disapplied United Nations sanctions against suspected terrorists within the EU legal space.  As Advocate General Bot puts it ‘[i]n essence, the Court held that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all EU acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by that Treaty’ [para 16].

Strong stuff.

So strong, the Court held back from immediate implementation of its ruling.  A flurry of activity followed. Kadi was sent reasons why he was on the UN blacklist, he commented, and the Commission then issued a fresh regulation keeping him where he was but boasting in the recitals of how inclusive they had been in this new decision-making process.  Its regulation was backdated to 2002 so as to provide no chink of light for Kadi so far as getting at his funds was concerned.  In further correspondence the Commission said that the ECJ ruling did not require it to disclose any of the evidence underpinning the reasoning behind the blacklisting.

So Kadi I was great for all the human rights and civil liberties people – but not for Kadi.

Hence Kadi II. Continue reading →