By The Hungarian elections on April 12 changed not only the country but also its relation to the European Union. The fall of outgoing Prime Minister Viktor Orban’s “illiberal” regime means the EU’s chief disruptor and most Russia-friendly government are both out.
Orban was responsible for 21 out of 48 vetoes, more than any other Member State leader, which directed many to call unanimity voting into question. European Commission President Ursula von der Leyen herself called for change: “Moving to qualified majority voting in foreign policy is an important way to avoid systemic blockages, as we have seen in the past,” she said.
But isn’t changing the vote only patching up symptoms of a larger issue?
The Current Toolkit
The EU also frequently referred to Hungary as a country in a “rule of law crisis.” The Rule of Law is defined as “guaranteeing democracy and citizens’ rights and freedoms” within the bloc to guarantee the uniform application of EU law.
To protect it, the EU introduced the Rule of Law toolbox, used to “promote” rule of law with both preventive and corrective measures. The annual rule of law report is a major part of the toolbox, designed to identify issues in each individual state. It is only used to encourage reforms and is not legally binding.
There are only few legally binding tools currently used by the EU.
Judicial infringement procedures are the most obvious, where the European Commission takes legal action against member states when EU law is violated. This, however, is invoked on a case-by-case basis, making counteracting systemic failures difficult. Its effectiveness is also questionable: Hungary had 26 new infringement cases in 2021, with 60 remaining open by the end of that year. Despite this, disruption and erosion continued.
The most effective tool has been withholding EU funds but even this has had limited effect.
It can take years before the economic effect of withheld funds comes back to the government, while changes failed to reach systemic issues.
This lead to partial reforms; but since Hungary’s constitution was regularly amended by Orban’s party (having enough seats in the National Assembly to do so), legislation could be reversed anytime. There are also critics inside the EU who say the Commission failed to assess reforms properly, potentially leading to premature release of funds.
Article 7 and Voting Rights
Article 7 of the Treaty of the European Union allows the suspension of certain rights of a member state if they are found to be in “clear risk of a serious breach by a Member State of the values referred to in Article 2” defined as “human dignity, freedom, democracy, equality, the rule of law and respect for human rights.”
Triggering Article 7 is vastly different from the legality of withholding funds, which is possible under Rule of Law Conditionality and is limited to financial sanctions.
Article 7 invokes political consequences to violating democratic principles and can involve stripping a member state of their vote completely.
This means that they would be subject to Council decisions without the opportunity to argue or vote against those decisions before a vote. The debate over whether it should be triggered has been fierce in academic and political discussion alike.
The potential use of this Article invokes a major issue: is the EU to protect its democratic values inside the bloc through undemocratic means?
“The main reason that Article 7 is in conflict with democratic legitimacy is that it breaks with a minimal standard of democratic processes whereby all those legally subject to a rule or policy ought to have a formally equal stake in authorizing it,” wrote Tom Theuns, Associate Professor of Political Theory and European Politics at the University of Leiden, in an academic paper in 2020.
It is this concern that led to indecisiveness on the matter, which is why Hungary’s vote was never suspended. Instead, focus shifted to the abolition of veto by moving to qualified majority voting, which involves controversy as well, but is much less likely to infringe democratic procedures.
While this is arguably the best solution in a worst-scenario, perhaps the EU can rethink its approach to be less reactive, managing the issues democratic backsliding causes at the EU–level and introduce preventive frameworks.
Democratic Backsliding Hinders EU Autonomy
EU competitiveness has never been more important. With the US retreating and Russia’s war against Ukraine ongoing, the EU has been extending integration efforts, venturing into military cooperation. Protecting democratic values is only another step in the direction of the EU becoming a more independent international actor.
The EU fashions itself as a guardian of democracy outside its borders; why not become the police officer protecting it on the inside? If the EU requires ascending potential members to have democratic safeguards, why not apply – really apply – the same principle to those already inside the bloc?
The move to qualified majority voting could work in the short-term but will not solve the fundamental issues it is attempting to address – just like all previous attempts.
But it might be enough to bridge the gap until the end a bigger reform wave.
For the EU this is a question of maintaining its moral standing: in the name of democracy, the EU supports Ukraine, aid ascending states in addressing rule of law concerns, and is ready to fight foreign interference and escalating hybrid attacks by creating a Centre for Democratic Resilience forming a “democratic shield.”
Since the EU acts primarily on legal grounds, this could be the best and most effective avenue to discuss enshrining media freedom, civil rights, anti-corruption measures, and checks and balances in a more concrete form to be included in the constitution of all member states.
Moving Forward
As the EU moves forward, it must reassess how it treats potential members and member states. If democratic values are inscribed in the Treaty of the EU, it is the responsibility of EU bodies to make sure all states abide by them. If democratic backsliding is not addressed on the national level, the responsibility moves higher.
Just because Orban is gone, the issue is not. A report by the Civil Liberties Union for Europe (Liberties), drew on evidence from more than 40 NGOs in 22 countries, warns that other states, like Slovakia, Italy, Croatia, and Bulgaria are also in danger of their governments “consistently and intentionally” eroding the rule of law.
