Author:

László Arató (EUrologus)

The Hungarian government is waging and has fought several major legal battles before the Court of Justice of the European Union. In general, the infringement procedures of the European Commission reach the litigation stage, but Hungary also challenges the decisions of the EU institutions; of course, you have the right to do so. These cases are all political in nature and in all of them, without exception, the Hungarian government has either failed or is lost.

Viktor Orbán and the main Fidesz politicians, on the other hand, claim, as they do now in the context of the budget veto, that they are really on the side of the rule of law, the “stealth legislation”, which over-expands the EU institutions and they undermine the rights of Member States. In recent years proceedings have been initiated in cases of symbolic importance, which is significant because the Hungarian government generally states that Hungary is in the middle in terms of the number of infringement proceedings. However, in terms of the number of procedures, this says nothing about whether it is a transposition of an EU directive dealing with a complex issue of details or whether it is a question of fundamental rights. In the last five years, Hungary has failed in the cases on which it bases its policy, that is, the Court of Justice of the European Union has ruled on the legality of the system.

Symbolic matters

The Interior Minister’s decision on the compulsory transfer of refugees from the Greek and Italian camps was contested by the Hungarian government for formal reasons. This was the case as to whether Hungary, like other Member States, should relocate asylum seekers from overcrowded camps and continue the asylum process. The Hungarian quota was to host 1,294 people. Years later, the Court ruled that Hungary’s (and Slovakia’s) action was unfounded, so Hungary had to fulfill its obligation, which it did not do. By that time, however, the asylum seekers who had been covered by the provision had been exhausted. Thus, in the end, the Hungarian government escaped relocation at the cost of violating EU law. This was stated by the Court of Justice of the European Communities at the end of another case. Similarly, the government’s legal battle on other important issues failed:

Hungary has been increasingly criticized in the European Parliament, until finally, in the spring of 2017, the decision was taken to start the procedure, at the end of which they can propose that Member States initiate the Article 7 procedure. of a complex process at the end of which Member States can make recommendations for breaches of the rule of law at the systemic level, which can lead to sanctions. For example, the suspension of voting rights. Of course, this does not mean exclusion, no one can be excluded from the EU, they can only leave it.

The report was produced by Dutch Green Party politician Judith Sargentini, the document bears her name. In order for Parliament to address the Member States, the report had to be approved by a two-thirds majority. On September 12, 2018, the resolution was approved by 448 votes to 197 and 48 abstentions.

If abstentions had been taken into account to determine whether two thirds of the votes cast had been reached, the required majority would not have been reached. This was exactly what the Hungarian government had clung to, and it was taking the matter to court. There is also a political turning point in the vote: the majority of the European People’s Party did not support Fidesz, either voted in favor of the report or abstained. Without it, the necessary majority would not have been possible.

Fidesz argued from the outset that the calculation of the voting result was not legal and that therefore the decision was invalid and could not have been presented to the Member States. In other words, the current Article 7 procedure has no legal basis and should therefore be abolished. However, this demand did not influence Member States to start dealing with it and also held hearings, although the process stalled time and time again.

Hungarian arguments are unfounded

In his Opinion published on Thursday, the Advocate General of the Court of Justice of the European Communities Michal Bobek stated that the Hungarian action must be dismissed by the court, the counting of the votes was carried out in accordance with the law, so the process you can also continue. Therefore, the Advocate General rejected the Hungarian legal argument for four important reasons.

Michal Bobek states that, from a linguistic point of view, the concepts of “abstention” and “cast vote” are mutually exclusive. While an abstainer requests that their vote be for or against a proposal and wishes to be treated as if they had not voted at all, the concept of “cast vote” implies that a person actively expressed their opinion by voting for or against. After examining the then Rules of Procedure of the European Parliament, the Advocate General concluded that:

Only the votes for and against will be taken into account to determine whether the text submitted to the vote is approved or rejected, except in cases where the Treaties provide for a special majority.

In this way, he clearly ruled out abstentions. An important argument of the Hungarian side was that the aforementioned “special majority”, but the Advocate General pointed out that this was a theoretical possibility, because the practice is that so far the Treaties have not provided for such an exception.

We can also read in the opinion that, a day and a half before the vote, the office of the European Parliament informed all the Members of the way the votes were counted, which means that the abstentionists should have been aware that their votes they would not be counted. The Hungarian government also argued that the Speaker of Parliament should have requested the opinion of the Constitutional Committee on the interpretation of the voting rules. By not doing so, the president has violated his obligation to dispel uncertainty. However, Michal Bobek points out that the EP’s Rules of Procedure do not provide for such an obligation.

The opinion of the Advocate General is not binding on the Court of Justice of the European Communities, but in the vast majority of cases the opinion is the same.

And what happened to the process against Hungary? While Viktor Orbán wants to achieve, and will use this in the negotiations, to close, the European Parliament rapporteur for Hungary, Sargentini’s successor, in this post, France’s Gwendoline Delbos-Corfield said in a keynote speech on Thursday that the Council must continue. it should intervene and put the recommendations to a vote not only in Hungary but also in Poland, as a similar procedure is being carried out against the Poles. The EU ministers for European Affairs could discuss this issue next week, but the German Presidency has not put the procedure under Article 7 on the agenda.



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