Hungarian News

Disregard of Law, Disregard of Judges

• January 29, 2022
• István
• 15 Comments

The European Court of Justice (ECJ) has picked February 16th as the date when the verdict in the case Hungary vs. EU concerning the rule of law mechanism will be announced.

We remember that the EU had hardly any means to bring a country back onto the rails when it went off the track of basic values as determined in the Treaty on the European Union (TEU.) The only measure was according to Art 7 a complicated and long lasting procedure taking away a country’s voting rights, which needs in the last voting to be unanimously, while the delinquent has no vote in this case. The TEU was written for a community of countries that shared the same democratic values, guaranteed the rule of law, and respected the rights of every single citizen. For smaller problems a juridical system exists, where a member state and the European Commission can solve disputes. It is a construction fault of the union not to think about the possibility that a country deliberately and structurally leaves the track of the common basic values.

The anger within the members of the EU grew about the fact that they were seen as cash cows by regimes that stand against all the values of the EU and of course of these other members, in case of the Orbán regime for an important part to enrich the party elite illegally. As long as crimes against the funds of the EU were uncovered by anti-fraud organisation OLAF and prosecuted through the justice of the member countries everything worked well, but in the case of Hungary the prosecution was prohibited by the national prosecutor. So the European Public Prosecutor Office (EPPO) was founded. Of course Orbán refused to join, officially because it would harm the sovereignty of Hungary. He forgot to mention that Hungarian citizens could jointly exercise their sovereignty with other Europeans, and that exclusively Hungarian judges would apply Hungarian penal law if EPPO brings a case to court. EPPO started working, is actively accusing those who are suspected criminals, but not in limiting governmental crime in Hungary.

So the idea of limiting funding came up. If a country doesn’t get money from Brussels it can’t use it to harm its own and other European citizens using these funds. In summer 2020 an EU top gave the commission order to develop a mechanism, this should be introduced with EU’s multiple year budget 2021 – 2027. In opposite to Orbán the EU doesn’t enact retroactive laws. The EU top decided unanimously that the rule of law conditionality should be adopted with qualified majority. The commission suggested a fast working procedure. In case the defendant wants to defend the maximal period of the procedure would last 3 months only from invoking it on an EU top. If we think about the still ongoing Article 7 TEU procedure against Hungary from 2017 this is very fast. Orbán threatened together with Poland to veto the budget in December 2017 and German chancellor Merkel suggested an additional political declaration. This doesn’t change the law of course, it doesn’t involve a voting of the European Parliament (EP) either. At the end Orbán agreed with the Rule of Law Conditionality Mechanism, so did the other members, and before them the EP. It became valid law on January 1st, 2021.

Of course every member state has the right to take the EU at the ECJ. So Orbán did, at the latest possible day to win time. His desire was to postpone the new rules before the elections of 2022. He didn’t think about the fact that addressing the court doesn’t suspend the law. The commission had the obligation to use the Rule of Law Conditionality Mechanism, but didn’t do so. President of the Commission Ursula von der Leyen delayed the application until the ECJ decision. After the ECJ published the date of announcement the commissioner of justice Didier Reynders declared that before the elections nothing would happen. This is true, according to the planning the next EU top will be on March 23rd and 24th, even if Orbán wouldn’t want to defend himself too short to get things done before April 3rd. The EP went against the delay and took the commission to the court as well – for inactivity, a very rare but possible case. Things went so bad that because of this case in the meanwhile Guy Verhofstadt (MEP Renew Europe, Belgium) called the commission to be replaced ►EN on January 27th, which is possible in the EP through a vote of no confidence. Renew Europe is one of the European parties the commission relies on in the EP (there are no official coalitions.)

Already since December we know that the advocate general Manuel Campos Sanchez-Bordona advised the court to dismiss the case ►EN, that the rule of law mechanism was an legally correctly introduced law and not contradicting the TEU. In the very most cases the court follows the advice of the advocate general.

Orbán has shown his disregard of the law again. Only in the knowledge of the date of the decision Orbán yesterday evening published “Samizdat 16.” Éva has found clear words for using the term of a soviet underground publication for a propaganda piece written by the head of state party and government ►EN. I quote from the English version of the illegal underground publication as found on the official web presence of the prime minister ►EN:

The Court’s ambitions have grown to an unprecedented level, however, and it has appointed itself as the flagship of the European federalist project. [….]On 16 February the Court of Justice of the European Union will rule on whether political and ideological conditions may be attached to the disbursement of financial resources to which Member States are entitled. [….]Therefore the judgment on 16 February, we reveal that the Court of Justice sees a federal Europe as being desirable. This is not a big surprise: when it has seen the machinery of European integration stalling, the Court has always pushed the EU towards federalism; it has purposefully extended its powers and undermined the bulwarks of national sovereignty. [….] They [the ECJ judges] think that they can not only administer the law, but also create and develop it. They think that they can force Member States to move to the next stage of integration. They think that they can place Member States under the tutelage of the EU institutions in relation to issues over which the EU has no remit. They think that this can be achieved with budgetary blackmail. [….] Member States must not accept a situation in which political decisions are taken by the European Court of Justice, instead of the peoples and governments of the Member States.

This is just another call to disregard law. Orbán himself, the other member states governments, and the democratically elected EP together have passed a law. He started a case against that law he agreed with. In most legal systems this would have been allowed only in very narrow cases, think about being misled about the content of a contract for example, the EU however allows such a trial even after being fully aware of the consequences of a vote. Of course Orbán is correct about “ideological conditions,” if corruption, theft, and other violations of law are the ideological background of his rule. Orbán has missed that a steadily further integration always has been part of the treaties, also when he himself negotiated the admittance of Hungary between 1998 and 2002. However, the question whether a law is legal within the framework of the TEU is not about further integration, it is about the currently valid treaty! Perhaps Orbán should have studied law, because he doesn’t understand that judges always create law, on continental Europe not so much as in the Anglo-American legal system, but yes, they do in both Hungary and the EU as well! And it is hard to state that judges are judging beyond their legal rights, when one has asked exactly this court to do exactly this. The peoples and the governments of the member states – including Hungary – have taken the political decision already, the ECJ just has to review, whether they were legally entitled to do so. Why can’t the judges of the ECJ throw those who disregard them into jail, as it is possible elsewhere?