A warning to the guardians

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

European Commission. [Shutterstock/skyfish]

The European Commission, as the guardian of the Treaties, is responsible for ensuring that member states duly implement EU law. If a country fails to comply, the Commission may launch a lengthy infringement procedure. András Kristóf Kádár takes a look at how this has been applied to Hungary.

András Kristóf Kádár is the co-chair of the Hungarian Helsinki Committee. 

The procedure is constructed in such a way that member states have ample opportunity to either convince the Commission that regulations have indeed been duly implemented, or to change legislation and practice.

At a minimum, the process includes three rounds of written consultations before a dispute can land before the EU Court of Justice. Even then, there is possibility that a member state may change course and fully implement EU law; whereby the Commission will then withdraw the case.

The infringement procedure is based on the belief that in the vast majority of cases, member states may veer off the path of full EU law implementation accidentally. In such cases, infringement procedures, albeit often slowly, tend to work. Then there is Hungary. 

Take for example the two cases where the Court of Justice has rendered a judgment in 2020: the case of Central European University (CEU) and that of the Russian-style “stigmatisation law” against NGOs.

Both laws were adopted more than three years ago amid heavy criticism from legal scholars and institutions that had already clearly explained why these regulations were incompatible with EU law.In both cases, the Court found that Hungarian legislation was in breach of EU law.

Hungary’s higher education reform bill passed in 2017imposed restrictions on foreign universities, including requiring them to provide courses in their countries of origin as well as in Hungary.

It also mandated that foreign universities could only operate in Hungary if a bilateral treaty existed between Hungary and their home country. The infringement procedure ended with a judgment on 6 October 2020 when the Court decided that the law contravened fundamental EU rights.

However, by then, CEU had already been forced out of Hungary. The situation could have been avoided if the Commission had requested an interim Court measure requiring Hungary to suspend the application of the law at the heart of the dispute.

Neither President Juncker’s nor President von der Leyen’s European Commission decided to do so. The result was a storm in a teacup. CEU is gone, and even if Hungary now changed its legislation, the university could not realistically move back from Vienna. 

The second judgment concerned a Russian-style law stigmatising Hungarian NGOs by requiring them to declare themselves as “foreign-funded organisations” if they receive at least €22,000 a year from sources outside of Hungary.

It will not come as a shock for those following the destruction of the rule of law in Hungary that the Government has not done anything to implement the Court’s judgment since it was delivered earlier this June.

In fact, ithas begun applying the law; firstly in the field of EU funding distribution: aGovernment-established public foundation rejected an NGO’s EU grant application over non-compliance with the impugned legislation.

According to information at the Hungarian Helsinki Committee’s disposal, the concerned NGO was not the only one from which a statement on being registered as a foreign-funded organisation was demanded as a precondition for access to EU funds.

In other words, in response to a judgment from the EU’s top court stating that a Hungarian law is in breach of EU acquis, Hungary has begun applying the unlawful legislation to the distribution of EU funds.

One would expect that amidst the debates about introducing rule of law conditions to EU funds, the ongoing Article 7 procedures against Hungary and Poland, and a fresh rule of law report painting a bleak picture of the situation in a number of member states, the guardians of the Treaty would condemn Hungary’s behaviour in the harshest tone and take immediate steps to enforce the EU Court’s judgment and to protect EU funds.

However, the Commission has not yet said a word on this issue.

The silence of the Commission is particularly frustrating. Not only is it their responsibility to ensure the proper implementation of the binding judgments of the Court of Justice, it is also their prerogative, and theirs alone.  

After a decade of the wilful destruction of checks and balances and the rule of law in Hungary, the Commission still conducts its affairs with the Orbán Government as if it is business as usual.

Failure to implement the Court’s judgment about the anti-NGO law clearly proves that Hungary is not violating EU law accidentally.

Apart from the obvious step of bringing Hungary back to the Court to impose fines, the Commission must also initiate infringement procedures against Hungary based on its own Annual Rule of Law Report, use interim measures where there is a risk of irreversible harm, and closely monitor implementation of judgments.

Simply, if they do not do so, no one else can.

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