Kim Lane Scheppele, Princeton University
On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground. But it is important nonetheless because it signals serious trouble within the EU. The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.
The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party. The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point.
[This post originally appeared on the Guardian website and is reproduced here with kind permission and thanks.]
Despite stern warnings from Brussels, the Hungarian government is set to vote today on what is already the fourth amendment to a new constitution which only came into force last year. Both the European Union and the Council of Europe have called for at least a careful reconsideration of some of the changes envisaged by rightwing prime minister Viktor Orbán, which overturn constitutional court rulings and curb judicial power. The European Commission’s president, José Manuel Barroso, has even hinted that they contravene EU law. Continue reading
In the book we are writing, we try to understand how Hungary, one of the forerunners of the post-communist constitutional democracies has fallen back – to say the least – to an illiberal democracy, if not to an authoritarian regime, after twenty years of constitutional development. In your posts on Paul Krugman’s New York Times blog you even went on to say that an unconstitutional Basic Law introduced a one-party police state. Before going into the facts and reasons for democratic backsliding, how would you characterize the current Hungarian political and constitutional system after the new Basic Law and most of the so-called cardinal laws have come into effect?
The new constitutional order is not a rule-of-law state in its formal legal features, which is a serious step backwards for Hungary. A constitutional rule-of-law state requires three elements: a guarantee that power can rotate among different political parties through free and fair elections, a guarantee that the elected government is constrained through a system of independent checks on power and a system for ensuring that individuals have meaningful rights that they can assert against the state so that they remain authors of their own lives. All three elements of constitutional government have been compromised with the new Hungarian constitution and the accompanying system of cardinal laws. That is why I have resorted to extreme descriptions.