On the 3rd of April Viktor Orbán, Hungary’s incumbent prime minister, won his fourth consecutive term in power. An unwelcomed but expected victory from the EU due to his reactionary governance over recent years.
Hungary has been rolling back from the EU's core values through various authoritarian tactics that have undermined the rule of law and democracy; the two most basic criteria to be a member state.
After the election, the EU confirmed its commitment to a new mechanism to cut funding to Hungary as a reply to Hungary’s disregard of its core principles. However, the security threats from war in Ukraine have shifted the balance of power within the EU and have potentially subverted the EU's commitment to disciplinary action.
How has Orbán Eroded the Rule of Law?
The rule of law is defined as:
“The mechanism, process, institution, practice or norm that supports equality of all citizens before the law, secures a nonarbitrary form of government and generally prevents the arbitrary use of power”.
It is a fundamental value of the EU’s constitutional interlinked ecosystem.
Orbán used his supermajority in 2010, where Fidesz (his party) controlled over 2/3rds of parliament, to pass a new constitution called the Fundamental Law. The new constitution has allowed him to continually entrench his power in an undemocratic manner.
The law reduced the retirement age of judges from 70 to 62 which immediately saw the removal of over 300 judges from courts, including several from their equivalent to the supreme court. He also increased the number of judges within the supreme court from 11 to 15, thus by 2015 Fidesz had selected a majority of the court. The new laws also limited the budgetary powers of the court.
He uses his vast control over the Hungarian media to criticise any ruling he doesn’t agree with. 80% of Hungarian media outlets are now owned by pro-Fidesz oligarchs. In 2020 he condemned a ruling that a school unlawfully segregated a minority of Roma students and signalled that the state should ignore any ruling that orders them to pay the students.
He has attacked Hungary’s educational system; stripping their prestigious Academy of Sciences of autonomy from the government. He has begun to privatise it while placing government officials on its advisory boards.
In 2018, the EU triggered Article 7 which accused Hungary of not respecting the values upon which the EU is founded.
The triggering means if the commission unanimously decides that Hungary has violated these core principles then they can suspend their voting rights. This has not happened to date as unanimity looks unlikely with Poland facing similar sanctions supporting Hungary.
To further increase the pressure, in 2021 the European Parliament passed the rule of law conditionality mechanism with a 77% majority. A law that allows the commission to withhold budget payments to countries that shirk the rule of law.
In February ECJ ruled against Hungary arguing a condition of enjoying membership was adherence to the rule of law. Therefore allowing a clear path for the mechanism to be implement; which it was shortly after Orbáns election victory. Hungary is now at risk of losing €40bn of funding.
Orbán has refused to make any concession to date declaring that the commission is unfairly penalising Hungary for its democratic decisions.
The commission is in a difficult position to either
i) take the hardline approach by continuing with the mechanism thus further damaging their relations.
ii) Or, back out risking the commission to look impotent and weak whilst still having Hungary undermine the EU’s principles and values.
The shock waves from war in Ukraine have made the dilemma even more difficult for the commission.
War has Shifted the Balance of Power Within the EU
Hungary has risen to prominence in the EU by blocking the embargo sanction on Russian oil which requires a unanimous decision from all 27 members.
Orbán, who is sympathetic to Russia, argues Hungary is focusing on ensuring the energy security for the landlocked country which relies singularly on the Russian Druzhba pipeline. Hungary’s foreign minister, Péter Szijarto, has said their unwillingness was “not a matter of a lack of political will or timing”.
However, their position has wielded them great power meaning countries such as Germany and France have been unable to curb their decisions. The EU is even considering offering them more money to agree on the Russian oil embargo; in direct contrast to the consensus just a few weeks ago on the rule of law conditionality mechanism which aims to restrict funding.
With an emboldened Hungary it is clear that the commission has side-lined its commitment to the new mechanism. Pursuing the mechanism against a strengthened and arguably pro-Russia Hungary would lead to unpredictable and destabilizing outcomes that would greatly threaten the EU's security.
Therefore it seems looking spineless and powerless is a price the commission is willing to pay to ensure the protection of the EU’s security in the face of Russia.
The headache of Hungary undermining the rule of law will thus remain for the foreseeable future.