Article 7 TEU, the EP vote and Hungary: Placing the vote in three contexts

Op woensdag 12 september 2018 stemde het Europees Parlement voor het aannemen van het Sargentini-rapport. Deze stemming lokt artikel 7, lid 1, VEU uit tegen Hongarije, waaruit blijkt dat er "een duidelijk risico bestaat van een ernstige schending door een lidstaat van de in artikel 2 VEU bedoelde waarden". Hoewel de volgende fasen van de artikel 7 VEU-procedure nog steeds onzeker zijn, blijven de historische relevantie van de stemming van het EP, de inhoud van het Sargentini-rapport en de reacties van de Hongaarse regering opmerkelijk. Een bijdrage van Petra Gyöngyi.

On Wednesday, September 12 2018, the European Parliament voted for the adoption of the Sargentini report in Strasbourg. This vote triggers Article 7(1) TEU against Hungary indicating a “clear risk of a serious breach by a Member State of the values referred to in Article 2 TEU”. With 448 votes in favor, 197 votes against and 48 abstentions, the vote received an absolute majority of two-thirds of the total votes cast in the Parliament. As the next step of the Article 7(1) procedure, there will be a Council meeting where Member States will discuss the EP decision, with the possibility to issue recommendations to Hungary. On this occasion, Hungary can present its position again. This will be followed by a vote of the European Council on Article 7(1) TEU. However, for this vote a four-fifth majority is required. Although, the next stages of the Article 7 TEU procedure remain uncertain, the historical relevance of the EP vote, the content of the Sargentini report and the reactions by the Hungarian Government remain notable.

This is the first time when the EP triggered an Article 7 TEU procedure based on an EP report. The Commission initiated an Article 7 TEU procedure against Poland for the first time in December last year. The basis for that vote was government influence over the judiciary and concerns over the rule of law. With reference to Hungary, the European Parliament investigated the rule of law situation in 2013, having the Tavares report at its basis.

The Sargentini report on which the discussed resolution was based, supported its claim of a serious risk of infringement of fundamental EU values by listing concerns over the functioning of the constitutional and electoral system, judicial independence, corruption, privacy and data protection, academic freedom, freedom of religion, freedom of association, right to equal treatment, rights of persons belonging to minorities, fundamental rights of migrants asylum seekers and refugees as well as economic and social rights.

Viewed from the broader context of evolving supranational instruments addressing rule-of-law challenges, the Sargentini report joins these instruments by providing an assessment based on consultation with multiple stakeholders and legitimizing its content with references to specific evidence and cases. Indeed, the report lists 48 of consulted institutions and persons, including the Hungarian Government, academic sources, NGO’s and supranational institutions. However, the report did not provide a definition of the core understanding of the rule of law value shared by Member States – inter alia the infringement of which the gathered evidence was meant to support. At the current state of rule of law discussions such a core conceptualization is possible. Without overlooking the differences in context, one may consider for instance the Council of Europe’s Venice Commission’s reports.

Regardless of the detailed content of the Sargentini report, in the Hungarian political context, the EP vote has been exclusively depicted by the Government as a clash between the EU and the Hungarian Government on immigration policies. This description was put forward in the reaction of Hungarian Foreign Minister Szijjártó after the vote as well as echoed in the Prime Minister’s biweekly radio interview in Hungary. As an additional step, the Hungarian Government also questioned the validity of the EP vote on procedural grounds and considers submitting a complaint to the CJEU on this matter. Nevertheless, these reactions do not seem to completely distort the Hungarian awareness of the vote. The follow-up discussions also focused on whether the EP decision and the report in itself concerned strictly the government’s policies or Hungary as whole. A nationally representative opinion poll commissioned by an opposition newspaper in Hungary, reported that 57% of the respondents believed the EP decision condemned the politics of the Hungarian government, 13% believed that the EP condemned Hungary, and 16% considered that both were equally condemned.

Overall, while the Article 7 TEU EP vote does not seem to provide solutions regarding the problem of enforcing EU rule of law values in Member States, it provides democratic legitimacy to continuous EU efforts of upholding the rule of law. At the same time, the vote opens up interesting political questions ahead of the EP elections in May next year. Specifically, the vote amplifies tensions regarding the role Fidesz plays and its future in the European People’s Party (EPP), currently the largest center-right party in the EP.