Hungary has courted controversy over the last few months and has been accused of ignoring European principles and undermining the rule of law. Walther Michl explained to what extent Budapest should fear repercussions from Brussels, in an interview with EURACTIV Germany.
Dr Walther Michl is an expert in European and public law at the Ludwig Maximilian University in Munich.
Michl spoke to euractiv.de’s Daniel Mützel.
A few days ago, Luxembourg’s foreign minister called on Hungary to be thrown out of the EU. Jean Asselborn criticised Viktor Orbán’s government, especially in regard to refugee policy and freedom of the press. What legal options does the EU have when it comes to forcibly expelling a member?
The problem with this is that the EU treaties say nothing on the matter. Under Article 7 of the Lisbon Treaty, there are sanction measures in place that can punish non-compliant states with temporary suspension of their membership rights. One possibility would be exclusion under the Vienna Convention. But this approach would be controversial, as EU governments would have to rely on common international law, outside of the European acquis.
So under what conditions could the EU revoke Hungary’s membership rights?
First, one-third of the member states would have to submit a so-called reasoned proposal to the European Parliament or European Commission, indicating that Hungary is violating European values. Subsequently, the Council of Ministers would have to back the proposal with a 4/5ths majority. If further diplomatic channels between the EU and Hungary would then still come to nought, then the European Council would have to unanimously agree that European values have been infringed. Only when this process has been completed would the ball be back in the Council of Ministers’ court, where they would then decide on appropriate sanctions, such as suspension of membership rights, through qualified majority.
It sounds like a tough legal road to go down.
It is. The biggest obstacle would be convincing the Council of Ministers to vote with the required majority. Finding a unanimous decision among heads of state and government, with the exception of Viktor Orbán, would also be a diplomatically delicate matter. That would mean getting the governments of Poland, Slovakia and the other Visegrád states on side, which would be no easy task.
Which membership rights could the EU withdraw from Hungary if it were passed?
Primarily, voting rights in the Council. This would mean that Hungary would have no right to vote on any legislation that would come before the Council. The country would also risk being excluded from the distribution of EU funding.
How would a distinction be made between a “threat” to European values and an actual infringement?
There is no clear line between the two. Though, one could define it as being when individual, isolated cases reach a critical level. When a government, in this case Hungary, interferes in the judicial process and limits freedom of the press, they can just be interpreted as isolated cases. But when they build up and can be seen as “a clear risk of seriously breaching” fundamental values, as stated under paragraph 1 of the treaty. If the individual cases mount up and it can be argued that the state is systematically being transformed into an authoritarian state, then there is more scope to call it an actual violation of values.
Who would define this difference between individual cases and a systematic dismantling of the rule of law?
This would be a political decision. If the other EU leaders are all of the opinion that Hungary is breaching these values, it’s case closed. When the treaty was drafted, no further criteria were considered. It was generally accepted that if such a situation were to arise, then the facts would be clear enough for the offender to be dealt with.
But that does mean that if the EU found itself in this scenario, after the Council of Ministers agreed there had been violations, it could years until the Council could come to a decision.
That’s just the way it is.
How would the EU have to change the treaty in order to exclude a member state, in this case Hungary?
One could introduce a condition that if during a period of suspension of member rights no improvement is noted by the European Council, the exclusion becomes permanent if the member states all agree. That would, at least, be clear. The only problem is that in order to change the treaty all 28 members have to agree, including Hungary. In the current situation, it would only fan the flames of populism, which would claim that the EU doesn’t want them in the bloc. The anti-EU sentiment that this exercise would seek to punish would only be strengthened.
The Brexit referendum demonstrated that leaving the EU, in principle anyway, is possible, but only on the initiative of the country that wants to leave. Why didn’t the architects of the treaty make it so other member states could kick out another country?
Well, the idea is that once you join the EU you’re in for life. The right to withdraw under Article 50 was only provided so that the EU would not be accused of being a “prison of the people”. Probably no one actually thought that it would ever actually be used.
And to go back to Hungary: Orbán only needs one ally at his side in the European Council and he has nothing to fear from the sanctions. That’s the reality currently.
Could one say that breaches of EU law could emerge on a regular basis, as the EU-Turkey deal has done just that, all for the sake of political expediency?
It can be interpreted this way. It seems more and more that the people involved with this have a functional understanding of the EU treaties. The current trend seems to be a move away from the supranational approach to a classic intergovernmental system of diplomatic relations. When EU law gets in the way of national interests, the tendency seems to be to ignore it.
How else can the EU react to what is happening in Hungary?
Instead of initiating an infringement procedure, it would be wiser to penalise violations conventionally, through the European Court of Justice (ECJ). The Court would then examine how Orbán’s government has breached the treaties. That would be a better alternative to the ultimately political decision that would be made by the European Council, which cannot help but be arbitrary.
What consequences could Hungary expect from a decision by the ECJ?
The Court could impose substantial financial penalties, but I can’t envisage anything more serious than that.
How do you assess developments in Hungary? Would the Court find fault with anything?
When it comes to the media, there is definite scope for examining incompatibility with EU law. But on refugee policy, the ground is not so sure. The construction of the border fences is not a violation of EU law per se. The external border of the Schengen area has to be secured. But if application procedures are not followed correctly or not offered, then the rules are breached. However, on the other hand, many refugees don’t even file an application in Hungary and are merely seeking to travel onward. When they cross the border illegally, it is they that are breaking the law. Bringing an infringement procedure against Hungary could be hugely problematic as a result.