Making Infringement Procedures More Effective: A Comment on Commission v. Hungary, Case C-288/12 (8 April 2014) (Grand Chamber)

scheppele, kimKim 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.  

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In Praise of the Tavares Report

Rui_Tavares (3)Kim Lane Scheppele

Yesterday Europe acted to hold the Hungarian government to the constitutional values that it eagerly endorsed when it joined the European Union nearly a decade ago.

The action came in the form of the Tavares Report, which sailed through the European Parliament with many votes to spare.  The report provides a bill of particulars against the Fidesz government and lays out a strong program to guide European Union institutions in bringing Hungary back into the European fold.   With the passage of this report, Europe has finally said no to Prime Minister Viktor Orbán and his constitutional revolution.

The Tavares Report is by far the strongest and most consequential official condemnation of the Fidesz consolidation of power over the last three years.  And it creates a powerful set of tools for European institutions to use in defending the long-term prospects for Hungarian democracy.

The report passed with a surprisingly lopsided vote: 370 in favor, 248 against and 82 abstentions. In a Parliament split almost evenly between left and right, this tally gave the lie to the Hungarian government’s claim that the report was merely a conspiracy of the left.  With about 50 of the 754 MEPs absent, the total number of yes votes was still larger than the total number of MEPs of all of the left parties combined.   In short, even if all MEPs had been present, the left alone still couldn’t account for all of those votes.   And since the 82 abstentions had the effect of allowing the report to go forward, they should be read as soft “yeses” rather than undecided or negative votes.  Continue reading

“Constitutional Revenge” in Hungary

This post originally appeared on Paul Krugman’s blog on The New York Times and is cross-posted here with permission.
One year ago, Hungary’s slide from a multiparty democracy into a one-party state was all over the headlines.    The European Union responded, threatening sanctions.  The Council of Europe (keeper of the European Convention on Human Rights) repeatedly rapped Hungary’s knuckles for violating European norms on democracy and the rule of law.   The United States expressed concern.    The forint (Hungary’s currency) dramatically weakened, even against the weakening Euro.
One year is a long time in politics and the current one-party Fidesz government has simply waited out the storm.   Sure enough, the European Union has gone back to business as usual, even increasing Hungary’s budget allocation.  The Council of Europe recently certified that Hungary is now compliant with a number of European standards.    The US is still concerned, but more quietly.  And the forint has started to recover from its late 2011 spike against the Euro.    It appears that Hungary is once again a normal country – or at least a tolerated one.
The world has relaxed because the Hungarian government appeared to modify some of the most offending reforms after pressure from the European Union, particularly with regard to the appointment of judges and media regulation. It also seemed that the Hungarian Constitutional Court was doing its job to keep the government in line.  Contrary to all predictions (including mine), the Constitutional Court has spent the last several months striking down many of the most worrisome laws passed by the Fidesz government.
The Court declared unconstitutional the law that arbitrarily lowered the retirement age of judges.  The Court nullified the law that made it a crime to be homeless in Hungary.  The Court quashed the requirement that students on state-provided financial aid remain in the country after graduation.  The Court voided on technical grounds an earlier constitutional amendment that handed power to the head of the National Judicial Office and to the chief public prosecutor to assign any case to any court, extended the old statutes of limitations for communist-era crimes, and established a new voter registration scheme.  And then the Court declared the voter registration scheme substantively unconstitutional as well.      Just this week, the Court declared unconstitutional the law that banned display of extremist symbols including the red star and the swastika, following prior decisions from the European Court of Human Rights.  And the Court declared unconstitutional parts of the law that removed the official legal status from more than 300 churches.
Even though the government had cut the jurisdiction of the Constitutional Court, changed the system for electing judges, expanded the bench and packed it with party loyalists, Court President Péter Paczolay has been able to skillfully mobilize bare majorities to hand setbacks to the government.  These strong decisions have honored basic rights and defended important constitutional principles, often agreeing with petitions sent to the Court by the surprisingly active Ombudsman Máté Szabó.
But the government is now seeking revenge for the various defeats it has suffered by introducing into the Parliament a 15-page constitutional amendment that reverses its losses.   The mega-amendment is a toxic waste dump of bad constitutional ideas, many of which were introduced before and nullified by the Constitutional Court or changed at the insistence of European bodies.    The new constitutional amendment (again) kills off the independence of the judiciary, brings universities under (even more) governmental control, opens the door to political prosecutions, criminalizes homelessness, makes the recognition of religious groups dependent on their cooperation with the government and weakens human rights guarantees across the board.  Moreover, the constitution will now buffer the government from further financial sanctions by permitting it to take all fines for noncompliance with the constitution or with European law and pass them on to the Hungarian population as special taxes, not payable by the normal state budget.

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