Commission v Hungary

Last week the European Commission took the first step towards European Court proceedings against Hungary, over the country’s controversial new constitution, which took effect at the start of the year.

Here’s the Commission’s press release. It summarises the legal grounds on which the Commission has issued its letter of formal notice:

Under new Hungarian legislation, also 274 judges (including judges at the Supreme Court) are being compulsorily retired in contradiction to EU rules. The government also receives powers over the data protection authority that contradict the EU Treaties, which require the independence of national data protection authorities (Articles 16 of the Treaty on the Functioning of the European Union/TFEU, Article 8(3) of the Charter of Fundamental Rights) and the independence of the national central bank (Articles 130 and 127 TFEU, Article 14 of the Statute of the European System of Central Banks and of the European Central Bank). Hungary’s central bank is part of the European System of Central Banks (ESCB) and the Hungarian Central Bank Governor has a seat in the General Council of the European Central Bank, which is the ECB’s third decision-making body.

As I say, this is only the first formal step towards infraction proceedings in the European Court of Justice: litigation hasn’t actually been commenced yet. Hungary now has a month in which to respond to the Commission in private correspondence, after which the Commission, if not satisfied with Hungary’s arguments and proposals, will deliver what’s called a “reasoned opinion” under article 258 of the Treaty on the Functioning of the European Union. That’s equivalent to a letter before action, and if Hungary doesn’t then cave in to the Commission’s demands (probably within a further month), the court proceedings will actually begin.

So in reality, we’re in a period of intense negotiation. Last week the Hungarian prime minister Viktor Orban defended his policies in the European Parliament; today he meets Commission President Jose-Manuel Barroso to discuss the differences between them.

Some might criticise the response of the EU and its leaders as being too soft, as compared with its policy of swift sanctions against Austria when the controversial right-wing Freedom Party entered its government in 2000. That though, was an unsuccessful and counter-productive policy, which many even left-wing Austrians thought was over the top (I visited Austria twice that year as I recall), and from which the EU backed down fairly quickly.

This more targeted approach of challenging concrete and specific breaches of EU law as they arise seems to me to have much greater potential to produce results, and to appear legitimate to Hungarians.